FBI Law Enforcement Bulletin - Aug01leb

ISSN 0014-5688 USPS 383-310

Features

Departments

6 Focus on TechnologyLaw Enforcement Web Sites

Subtle Skills forBuilding Rapport

By Vincent A. Sandovaland Susan H. Adams

Making ComputerCrime Count

By Marc Goodman

AddressingSchool Violence

By Francis Q. Hoang

Miranda RevisitedBy Thomas D. Petrowski

1

August 2001Volume 70Number 8

United StatesDepartment of Justice

Federal Bureau of InvestigationWashington, DC 20535-0001

Contributors' opinions and statementsshould not be considered an

endorsement by the FBI for any policy,program, or service.

The Attorney General has determinedthat the publication of this periodical is

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The FBI Law Enforcement Bulletin(ISSN-0014-5688) is published

monthly by the Federal Bureau ofInvestigation, 935 PennsylvaniaAvenue, N.W., Washington, D.C.

20535-0001. Periodicals postage paidat Washington, D.C., and additionalmailing offices. Postmaster: Sendaddress changes to Editor, FBI LawEnforcement Bulletin, FBI Academy,

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EditorJohn E. Ott

Associate EditorsGlen BartolomeiCynthia L. LewisBunny S. Morris

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This publication is produced bymembers of the Law Enforcement

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Send article submissions to Editor,FBI Law Enforcement Bulletin, FBIAcademy, Madison Building, Room

209, Quantico, VA 22135.

Law enforcement must build an internalcapacity to define, track, and analyzecomputer crime.

Investigators can employ Neuro-Linguistic Programming techniquesduring interviews to help them buildrapport .

18Communities can help reduce theimpact of school violence by followingthree simple steps.

10

25In view of the decision in Dickersonv. United States, agencies shouldreevaluate their policies regardingMiranda.

24 Book ReviewThe Loss of Innocents

August 2001 / 1

etective Hamilton is usingtechniques from Neuro-Linguistic Programming, a

her paralanguage (speech rate, vol-ume, and pitch). In so doing, Detec-tive Hamilton builds rapport withthe witness and, hence, increaseshis chances of gathering pertinentinformation during the interview.

Detective Hamilton and otherexperienced investigators recog-nize the crucial role that rapportplays in an interview. Derived fromthe French verb rapporter meaning“to bring back,” the English wordrapport refers to a relationshipor communication characterizedby harmony.1 With this in mind,the need for rapport applies to allinterviews, but especially to those

Subtle Skills for Building RapportUsing Neuro-Linguistic Programmingin the Interview RoomBy VINCENT A. SANDOVAL, M.A., and SUSAN H. ADAMS, M.A.

Mark Hamilton, a seasoneddetective, slowly opens the doorto the interview room. Thewitness to the drive-by shootingsits leaning forward in a chairwith her head in her hands.Normally, Mark bellows outhis introduction to establishimmediate control, but notthis time. He enters the roomwithout speaking, pulls a chairclose to the witness, leansforward, and, in a barely audiblevoice, slowly begins, “I’mDetective Mark Hamilton....”

Dcommunication model with a namehe might not even recognize. Yet,his years of interviewing havetaught him the techniques. To estab-lish rapport with this witness, De-tective Hamilton knows that heneeds to match her nonverbal be-havior, or kinesics, by sitting downand leaning forward. When thewitness begins to talk, DetectiveHamilton listens carefully to herwords and intentionally uses similarlanguage. He also pays close atten-tion to how she talks and matches

2 / FBI Law Enforcement Bulletin

involving a victim or witness whohas experienced physical or psy-chological abuse. The interviewer’stask is similar to that of the clinicalpsychologist, who must initiallydevelop a personal bond with hisclient before intimate feelings areshared.2 Thus, investigators canenhance their rapport-buildingskills by examining some practicalrecommendations derived fromthe behavior modification tech-nique known as Neuro-LinguisticProgramming.

UNDERSTANDINGNEURO-LINGUISTICPROGRAMMING

In the early 1970s, JohnGrinder, an assistant professor oflinguistics at the University of Cali-fornia in Santa Cruz, and RichardBandler, a student of psychology,identified patterns used by success-ful therapists. They packaged themin a way that could be passed on to

others through a model now knownas Neuro-Linguistic Programming,or NLP.3

Neuro-Linguistic Programmingembraces three simple concepts.First, the neuro part of NLP recog-nizes the fundamental idea that allhuman behavior originates fromneurological processes, which in-clude seeing, hearing, smelling,tasting, and feeling. In essence,people experience the worldthrough their senses. Second, theycommunicate their experiences ver-bally, through language;4 therefore,the linguistic part of NLP refers tothis use of language to communi-cate thoughts. Finally, the program-ming aspect of NLP recognizes thatindividuals choose to organize theirideas and actions to produce results.Each person also decides how toorganize these ideas in a specificmanner.5

The NLP founders theorize thatpeople think differently and that

these differences correspond to in-dividual programming or process-ing systems. People use their sensesoutwardly to perceive the world andinwardly to “re-present” this expe-rience to themselves. In NLP, repre-sentational systems denote wayspeople take in, store, and code in-formation in their minds.6 Thesesystems pertain to the principal hu-man senses—seeing (visual), hear-ing (auditory), and feeling (kines-thetic). To a lesser degree, theyinvolve tasting (gustatory) andsmelling (olfactory). People con-stantly see, hear, and feel whatevertranspires around them. Whenindividuals relate these experiencesto others, they mentally accessthe sights, sounds, or feelingsassociated with these experiencesand communicate them throughtheir predominant representationalsystem.7

BUILDING RAPPORTWITH NLP

Enhancing communication and,hence, building rapport representsthe most applicable aspect of NLPto investigators. The ability to com-municate effectively and build rap-port stands as one of the major con-tributors to a police officer’ssuccess in dealing with the public.8

In an interview setting, effectivecommunication involves theinterviewer’s skill in establishingrapport through specific actions andwords, thereby building trust andencouraging the interviewee to pro-vide information.

Others besides successful lawenforcement interviewers havefound NLP techniques helpful inrapport building. For example,

Special Agent Sandoval isan instructor in the LawEnforcement CommunicationUnit at the FBI Academy.

Special Agent Adams isan instructor in the LawEnforcement CommunicationUnit at the FBI Academy.

August 2001 / 3

some medical hypnotists use theconcept of “matching” with highlyresistant clients.9 By simply con-forming their nonverbal behavior tothat of each client, by using lan-guage from the client’s preferredrepresentational system (visual, au-ditory, or kinesthetic), and bymatching the client’s volume, tone,and rate of speech (paralanguage),they often can overcome the client’sreluctance to communicate.

When interviewers intention-ally align themselves with a witnessor suspect through these matchingor mirroring techniques, the inter-viewee is more inclined to respondto the interviewer and subsequentlyprovide information. As one re-searcher points out, “people likepeople who are like themselves.”10

Once interviewers establish rap-port, barriers disappear, trustgrows, and an exchange of informa-tion follows. To achieve these re-sults, interviewers should match or“mirror” the interviewee’s kinesics,language, and paralanguage.

Building Rapportby Matching Kinesics

Matching another person’sbody language or kinesics probablyis the easiest and most obvious tech-nique. Kinesic behavior typicallyincludes gestures, posture, andmovements of the body, such as thehands, arms, feet, and legs.11 How-ever, a difference exists betweenmimicry and matching. Interview-ers should match another person’sbody language with subtlety andcaution; otherwise, the person eas-ily could become offended. Peoplewho have developed rapport tend tomatch each other in posture and

gestures. For example, individualsconversing together often adopt thesame posture. Like partners in adance, they respond and mirror eachother’s movements with move-ments of their own, engaging inmutual responsive actions.12

Detective Hamilton employsthe kinesics aspect of NLP in hisinterview. When he enters the inter-view room, he immediately noticesthe witness’ posture and the posi-tion of her hands. He notes that sheis leaning forward with her headdown. Her posture and the positionof her head speak volumes.

Hamilton matches her behavior,thereby lending credence to thebelief that the deeper the rapporthas been built between two people,the closer the matching of bodylanguage.

Building Rapport byMatching Language

Because people use language tocommunicate thoughts, the wordsthey choose reflect the way theythink. When relating experiences,an individual uses the visual, audi-tory, or kinesthetic representationalsystem to identify these experiencesand communicate them to others.For example, a person whose pre-dominant representational system isvisual will say phrases, such as “Isee what you mean,” “that looksgood to me,” “we see eye to eye,” or“I get the picture.” On the otherhand, a person whose preference isauditory will use language, such as“something tells me...,” “that ringsa bell,” “we’re on the same wavelength,” or “that sounds okay tome.” Finally, a person who is kines-thetic or “feeling” oriented willmake statements, such as “I’ll get intouch with you,” “how does thatgrab you?,” “you don’t have to getpushy,” or “how do you think Ifeel?”13

Successful investigators listenclosely to the choice of words wit-nesses and suspects use. Then, theyconform their language to match theinterviewee, using similar visual,auditory, or kinesthetic phrases.

When Detective Hamilton’sdrive-by shooting witness finallybegins to talk, she describes hersituation with phrases, such as “tre-mendous pressure,” “I feel like I’m

”

Once interviewersestablish rapport,barriers disappear,

trust grows, andan exchange of

information follows.

“As Detective Hamilton intro-

duces himself, he pulls his chairclose to the witness and, just likeher, leans forward in his chair withhis hands in front of him. As thewitness begins to open up and speakabout what she has seen, her non-verbal behavior gradually followssuit, as she opens herself up by sit-ting back. Eventually, as her trust inDetective Hamilton grows, shefeels comfortable enough to relax.She realigns her posture by sittingup and facing Detective Hamilton.Through each succeeding changein her body language, Detective


going to pieces,” and “I can’t cometo grips with what’s happening.”The detective responds to the wit-ness’ account by matching herwords. When she speaks of the“tremendous pressure,” he explainsways to relieve the “pressure.”He continues to use kinestheticphrases, such as “take this load offyour shoulders,” to communicatein her preferred representationalsystem.

Because individuals process in-formation in different ways,through distinct representationalsystems, the investigator often ac-quires valuable insight into theinterviewee’s personal preferenceby paying close attention to theinterviewee’s eye movements. Ac-cording to NLP, eye movements,referred to as “eye-accessingcues,”14 reflect the manner in whichan individual processes data. There-fore, the eyes move in specified di-rections, depending upon theperson’s preferred mode of think-ing. The founders of NLP con-cluded that eye movements reflectwhether the person has a visualpreference (thinks in terms of pic-tures), an auditory preference(“hears” sounds), or a kinestheticpreference (feels or experiencesemotion) to process information.15

Typically, individuals movetheir eyes up at an angle as theyremember a picture. Some peoplelook directly to the side, which indi-cates that they are using the audi-tory mode to recall something thatthey probably heard before. Finally,individuals who look down at anangle appeal to kinesthetic sensa-tions as they recollect what they feltor experienced.16

If an investigator observes thata witness consistently looks up at anangle, particularly when respondingto questions that require recall, theinterviewer can conclude, with ameasurable degree of confidence,that the person is “seeing” a picturewhile remembering information. InNLP terms, this individual’s pre-ferred representational system is vi-sual. The investigator can facilitatethe witness’ recollection of events

feelings or emotions, such as “howdid all of this feel to you?” or “canyou get a handle on what tookplace?” By closely monitoring themovements of a person’s eyes andaligning questions in accordancewith the interviewee’s observedpreferences, investigators can buildrapport, thereby enhancing commu-nication between themselves andthe people they interview. WhileNLP practitioners cite a direct neu-rological connection between eyemovements and representationalsystems,17 other researchers recog-nize the need for additionalempirical studies.18 Currently, in-vestigators use interviewees’ eyemovements as another possible in-dicator of their preferred manner ofcommunicating.

Building Rapport byMatching Paralanguage

Matching another person’sspeech patterns, or paralanguage,constitutes the final, and perhapsmost effective, way to establish rap-port. Paralanguage involves how aperson says something or the rate,volume, and pitch of a person’sspeech. One researcher goes so faras to say that matching the otherperson’s voice tone or tempo is thebest way to establish rapport in thebusiness world.19 What may holdtrue in the business realm applies inthe interview setting as well. Indi-viduals can speak fast or slow, withor without pauses. They can talk ina loud or soft volume and in a highor low pitch. However, most peopleare unaware of their own speechrate or vocal tones. In fact, investi-gators do not have to match aperson’s voice exactly, just close

by encouraging this visual recallthrough such phrases as “how did itlook to you?” or “show me what youmean.” If the witness looks to theside when asked a question con-cerning what the person saw, theinvestigator can encourage the wit-ness to remember by using ques-tions designed to stimulate auditoryrecall, such as “tell me what youheard” or “how did it sound toyou?” Finally, if the witness looksdown at an angle when asked aquestion by the investigator, thiscould indicate that the person has akinesthetic preference. Therefore,the investigator can choose phrasesthat underscore the witness’

ParalanguageLang

uage

Kinesics

RapportBuildingwith NLP

August 2001 / 5

enough to encourage that individualto feel understood.20

In the interview setting, slow-ing the rate of speech to correspondwith the pace of a halting witnessallows for recall and communica-tion at that person’s pace. By thesame token, if a witness speaks withmore volume and at a quick rate, theinvestigator should try to match theperson’s animated and expressivemanner of speech. By listeningcarefully and paying close attentionto how people speak, investigatorscan, in NLP terms, get “in sync”with people by matching theirparalanguage.

Experienced investigators con-tinually employ this technique, usu-ally without even thinking about themechanics or the process involved.Detective Hamilton also uses thisaspect of NLP in his interview.

The drive-by shooting witnessspeaks slowly, as if searching forthe right words. Detective Hamiltonslows the rate of his speech, givingample time for the witness to get herpoint across without feeling rushed.He lowers his voice to match hersoft volume and refrains from theurge to interrupt her. As the witnessbecomes more excitable, speedingup her speech rate and increasingher volume, Detective Hamilton in-creases his rate and volume as heattempts to mirror her. In so doing,he demonstrates to the witness thathe is interested in her as an indi-vidual, and this allows her to com-municate what she experienced in away that is comfortable for her.

CONCLUSION

Detective Mark Hamilton’switness begins to feel support and

understanding from the interviewer,who continues to match her kine-sics, language, and paralanguage.When he sees her consistently look-ing down to her right, he realizesthat she may be processing informa-tion on the kinesthetic level and en-courages her to talk about her feel-ings. Slowly, she begins to trustDetective Hamilton.

Unbeknown to the witness, De-tective Hamilton had been matchingher in specified ways until she fi-nally felt secure enough to providefull details of the drive-by shooterand his vehicle. As a result, the wit-ness’ emotional need was met and,from Detective Hamilton’s perspec-tive, the interview was a success.

to their advantage. By matchinginterviewees’ nonverbal behavior,the manner in which they say some-thing, and even their choice ofwords, interviewers can increaserapport and enhance communica-tion. As a result, the potential forgaining crucial information neededto help resolve investigations im-proves significantly.

Endnotes

1 Genie Z. Laborde, Influencing with

Integrity (Palo Alto, CA: Syntony Publishing,1987), 27.

2 Ronald P. Fisher and Edward R.Geiselman, Memory-Enhancing Techniques for

Investigative Interviewing, (Springfield, IL:Charles C. Thomas Publisher, 1992), 22.

3 John O’Connor and John Seymour,Introducing Neuro-Linguistic Programming

(London, England: Harper Collins Publishers,1990), 2.

4 Ibid., 3.5 Ibid., 3.6 Ibid., 26.7 Richard Bandler and John Grinder, Frogs

Into Princes (Moab, UT: Real People Press,1979), 5.

8 P.B. Kincade, “Are You Both Talking theSame Language?” Journal of California Law

Enforcement 20: 81.9 Ibid., 19.10 Jerry Richardson, The Magic of Rapport,

How You Can Gain Personal Power in Any

Situation (Cupertine, CA: Meta Publications,1987), 21.

11 Judith A. Hall and Mark L. Knapp,Nonverbal Communication in Human

Interaction (Fort Worth, TX: Harcourt BraceJovanovich College Publishers, 1992), 14.

12 Supra note 3, 19.13 Supra note 7, 83.14 Supra note 7, 35.15 Supra note 7, 25.16 Supra note 7, 25.17 Supra note 7.18 Aldert Vrij and Shara K. Lochun,

“Neuro-Linguistic Programming and thePolice: Worthwhile or Not?” Journal of Police

and Criminal Psychology 12, no. 1 (1997).19 Supra note 1, 30.20 Supra note 1, 31.

”

Successfulinvestigators listen

closely to thechoice of wordswitnesses andsuspects use.

“This scenario illustrates the

importance of carefully observ-ing how witnesses and suspectscommunicate through nonverbal,verbal, and vocal means. Neuro-Linguistic Programming is not anew concept nor used rarely. Infact, most successful interviewersemploy some variation of it togain rapport. However, by beingconscious of the process and thebenefits associated with NLP, inter-viewers can use these techniques


f law enforcement administrators were asked 10years ago what role they thought the InternetI

would play in their agency’s operation in the future,the response may have been “what’s the Internet?”This once obscure medium, originally designed forresearchers to communicate more effectively, hasevolved into a communications staple for householdsand businesses. Recent surveys indicate that morethan 153 million Americans currently use theInternet.1

The Law Enforcement Web Site Evolves

While most historians measure time in decades orcenturies, the evolution of law enforcement’s involve-ment with the Internet is only a few years old. Onepart of a police department’s role in society is to pro-vide various types of information to its citizens. Formany years, law enforcement agencies have relied ontraditional means of disseminating information. Thesestandard proven methods include public service spotsthat appear on network and public access cable

television, in newspaper articles, at displays at localfairs and expos, and in an agency’s annual report.With the advent of the law enforcement Web site,agencies now can add a valuable information resourceand public relations tool to that list. Even those indi-viduals who do not own a computer or have Internetservice usually can get access at their workplace,local libraries, or other nonprofit public resources. Inaddition to the public relations benefits, agencies cangarner widespread utility from a well-crafted Website, which now can include information ranging fromcrime statistics to employment opportunities.

Going On-line with a Web Site

Regardless of an agency’s size, it must followseveral basic steps when creating a Web site. First, anagency must identify and understand what resourcesare available to it in the process. When developingnew sites, agencies should remember that theyshould custom design their Web pages to meet theirspecific requirements. An agency must select a host

Focus on Technology

Law Enforcement Web SitesNew Utility for a New EraBy Clyde B. Eisenberg, M.S., and Brandon Porter

August 2001 / 7

server and register a domain name—essentiallythe Internet address of the organization (e.g.,www.youragency.org). Agencies can register theirdomain names with the Internet Corporation forAssigned Names and Numbers (ICANN), a nonprofitorganization that coordinates the assignment ofInternet domain names. Agencies interested inregistering a domain name or seeking Web sitehosting arrangements can review a list of companiesqualified to register domain names and provide Website registration services withinthe ICANN Web site. Registeringa domain name costs approxi-mately $50 for a 2-year registra-tion, but many packages orservice bundles are availablethrough ICANN-accrediteddomain name registrars.

A host is an Internet ServiceProvider (ISP), either publicly orprivately owned, which providesa link between an agency’s Website and the Internet for little or nofee. The cost of using a privatehost can range from as little as$20 to as much as several thousand dollars per month,based on the size of the Web site and the amount oftraffic it transmits and receives. In Florida, the State’sAttorney General’s Office provides free hosting tothe Internet for law enforcement agencies.

A Web site can be as simple as a single page,or it may contain several hundred pages, dependingon the scope of the information offered. When firstcreating a Web site, an agency must decide thepurpose of the site. Will they use it simply as a publicrelations tool, merely highlighting various facets ofthe agency? Will it be self-contained or offer addi-tional resource links? Will it provide interactiveservices to its visitors?

For those agencies that need outside assistance todevelop and create a Web site, a plethora of compa-nies exist that offer these services for a fee, whichcan range from several hundred to several thousanddollars, depending on the size of the site and thevarious options selected. However, because smallWeb sites are relatively easy to create, in-housepersonnel with above-average computer skills often

can maintain the agency’s site. Agencies do notrequire special software for basic Web site creationsbecause most popular browsers, and even some wordprocessing software, include a composer to createbasic Web pages. However, to produce moreadvanced Web sites, agencies usually will needspecialized software.

Web sites requiring such specialized softwaremay offer interactive services that derive informationfrom the agency’s computer databases. This software,

referred to as Internet CommerceEnabler (ICE) software, servestwo major purposes. First, it actsas a firewall, allowing only certaininformation to enter into the siteand restricting what informationusers can retrieve. Due to recentpublicized hackings into well-known Web sites and the potentialdamage such an intrusion cancause, this product becomesessential when managing publicaccess to an agency’s data. ICEalso converts information froman agency’s database into Hyper

Text Markup Language, commonly referred to asHTML.2

One Agency’s Experience

In 1994, the Hillsborough County Sheriff’s Office(HCSO) in Tampa, Florida, launched its first Website. At its inception, the site consisted of only a fewpages, limited pictures, and some information aboutthe agency. The first venture into this new mediumproved a learning experience for the HCSO; however,neither the agency nor the public gleaned much utilityfrom this site. In 1998, HCSO management realizedthat having a Web site provided great potential, whichled the way to a revision of the old site. HCSOwanted to furnish timely information about how theagency serves the public (e.g., various programs,agency organizational charts, location of departments)and to provide a utility for the agency and the Website visitors (e.g., crime statistics, history, on-lineforms).

Additionally, the update added state-of-the-artfeatures to the site, allowing greater access and ease

“

”

A Web site can beas simple as a single

page, or it may containseveral hundred

pages, dependingon the scope of theinformation offered.

of use. For example, the HCSO Detention Departmentreceives hundreds of calls every day inquiring aboutthe status of the inmates housed in the county correc-tional system. The new Web site now interfaces withthe HCSO’s mainframe computer and, because thearrest data is public information, anyone can accessthe information by querying either a name or abooking number.

Other law enforcement agencies also have goneon-line with inmate information. In March 2000, theLos Angeles County, California, Sheriff’s Department(LASD) went on-line allowing anyone with Internetaccess to search the department’s database of arrestrecords, including the names and dates of births ofindividuals arrested in the last 30 days, along with thecharges, bail amounts, and court dates. Additionally,the LASD database includes information on the20,000 inmates in custody and the 2,400 inmates incommunity-based programs.3

The HCSO warrants section currently has morethan 90,000 active warrants, which also are publicinformation and accessible via the Web site. Previ-ously, the agency handled only wanted-person inquir-ies from citizens, private investigators, or businessesconducting pre-employment screening in person atthe records section of the agency. These advances inthe HCSO site have proved useful to the agency by

• Nielsen Net ratings, available at www.nielsennetratings.com, offers information on Internetusage in the United States and worldwide.

• The Internet Corporation for Assigned Names and Numbers, available at www.icann.org, isone of the technical coordinating bodies for the assigning of domain names and numbers forthe Internet.

• Officer.com, available at www.officer.com, provides a comprehensive, alphabetized list of lawenforcement agency Web sites.

• Hillsborough County, Florida, Sheriff’s Office, available at www.hcso.tampa.fl.us.

• Los Angeles County, California, Sheriff’s Department, available at www.lasd.org.

• Riverside County, California, Sheriff’s Department, available at www.co.riverside.ca.us/sheriff/.

Web Site Resources

reducing the number of walk-in requests. Addition-ally, those individuals or businesses seeking informa-tion benefit by receiving more timely, convenientinformation.

Law enforcement public information officers(PIOs) often spend a great deal of their time workingwith reporters. A large agency typically will have oneor two full-time PIOs. The HCSO Public InformationOffice handles approximately 1,200 requests fromthe media and the public per month. By placing news-worthy press releases on a continually updated specialpress release Web page, the HCSO has significantlyreduced the telephone inquiries to its public informa-tion office. Additionally, this special Web pageprovides timely information to some smaller newsagencies that may not have full-time reporters. At theHCSO, most calls from the news media regard trafficconditions, particularly during the morning andafternoon rush hours, which represent some of thebusiest times in the communications section thathandles those inquiries. To address this problem, theHCSO Web site has interfaced a traffic advisory Webpage with its computer-aided dispatch system. Tele-vision and radio stations, citizens, and any otherinterested parties can visit that page to view real-timedispatch information regarding vehicular accidents,detours, and road obstructions. The display indicates


August 2001 / 9

Sergeant Eisenberg serves with the Hillsborough County,Florida, Sheriff’s Office.Mr. Porter is a software specialist in the Data OperationsBureau of the Hillsborough County, Florida, Sheriff's Office.

the location of the problem and advises when anHCSO unit is en route or arrives at the scene. TheHCSO Web site also allows citizens to view picturesof wanted individuals, crime statistics, and upcomingevents involving the office. Additionally, the HCSOCommunity-Oriented Policing Program providesresidents with up-to-date information on particularactivities in their community.

Currently, the HCSO Web site contains 800linked pages and receives a daily average of 40,000hits. Visitors also can e-mail comments or questionson the site to the HCSO Web site administrator, whoresponds to all legitimate e-mails in a timely manner.

The HCSO started an on-line store offeringT-shirts and hats for sale. Further, HCSO has createda special secure section, accessedby a password, which allows itsemployees access to information,such as the list of available off-dutyemployment jobs and recentdepartmentwide memos andtraining bulletins.

Advanced Utility to an Agency

As the information technologyfield grows, law enforcementagencies will continue to find newways to integrate their mission withthe Internet. For the last severalyears, the Riverside County, California, Sheriff’sOffice has allowed citizens to file reports on-line.

To file a report on-line with the Riverside CountySheriff’s Office, a complainant can access the River-side Sheriff’s Office Web site, click on “CrimeReport Form,” and complete the basic information ona user-friendly form. The complainant will receive anacknowledgment within 3 days, via e-mail, and theassigned case number. The department has limitedsuch on-line reporting to property crimes and miscel-laneous occurrences and does not allow a complainantto file on-line if the crime involved known suspects,violence of any kind, or if it required officers tocollect physical evidence at the scene. Although thisagency characterized the practice as a good learningexperience, they consistently have received only afew on-line reports per month.

The FBI National Executive Institute Associatesrecently conducted a survey of agencies with morethan 500 officers that had Web sites. The results ofthis survey yielded valuable information regarding avariety of Web site uses by law enforcement. Of the68 agencies that responded to the survey, 27 percentprovided sexual offender information, 9 percentoffered accident report information, and 18 percentallowed individuals to file reports on-line.4 Theseresults reveal only a small percentage of the effectiveuses of Web sites for law enforcement.

Conclusion

Web site technology has advanced both exten-sively and rapidly. Daily improvements to capabili-

ties, such as video, audio, andgeneral accessibility, significantlyincrease the potential uses a Website can offer law enforcement. Asthis technology continues toadvance, the future utility of a Website virtually is unlimited, given thecollective imagination of anagency’s members, and the vitalinput of the public it serves.

By developing and maintainingan informative Web site, an agen-cy, as well as the public it serves,can benefit by conserving time and

resources. More important, numerous categories ofusers would gain valuable, free information quicklyand with minimal cost to the community.

Endnotes

1 See, http://www.nielsonnetratings.com; accessed January 23, 2001.2 HTML is the computer language of the Internet-recognized Web

browsers.3 “Los Angeles Sheriff Puts Inmate Information On-line,” Government

Technology vol. 13, no. 8 (June 2000): 11.4 E. Tully, “ The Present and Future Use of the Internet by Law

Enforcement-Part One,” National Executive Institute Associates Research

Projects On-line, June 2000; www.neiassociates.org; accessed January22, 2001.

“

”

...in-housepersonnel withabove-averagecomputer skills

often can maintainthe agency’s site.


oes computer crime pose aserious threat to America’snational security? RecentD

highly publicized computer virusattacks have shown that computercrime has become an increasingproblem. Unfortunately, the ab-sence of a standard definition forcomputer crime, a lack of reliablecriminal statistics on the problem,and significant underreporting ofthe threat pose vexing challengesfor police agencies.

Sensational headlines, such as“Nation Faces Grave Danger of

Electronic Pearl Harbor,”1 “InternetParalyzed by Hackers,”2 “ComputerCrime Costs Billions,”3 havebecome common. Law enforcementorganizations cannot determine ex-actly how many computer crimesoccur each year. No agreed-uponnational or international definitionof terms, such as computer crime,high-tech crime, or informationtechnology crime, exists. Thus, asa class of criminal activities, com-puter crime is unique in its posi-tion as a crime without a defi-nition, which prevents police

organizations from accurately as-sessing the nature and scope of theproblem.

Internationally, legislative bod-ies define criminal offenses in penalcodes. Crimes, such as murder,rape, and aggravated assault, allsuggest similar meanings to law en-forcement professionals around theworld. But what constitutes acomputer crime? The term covers awide range of offenses. For ex-ample, if a commercial burglary oc-curs and a thief steals a computer,does this indicate a computer crime

© Adobe Image Library

Making ComputerCrime Count

By MARC GOODMAN

August 2001 / 11

or merely another burglary? Doescopying a friend’s program disksconstitute a computer crime?The answer to each of thesequestions may depend on variousjurisdictions.4

The United States Departmentof Justice (DOJ) has defined com-puter crime as “any violation ofcriminal law that involved theknowledge of computer technologyfor its perpetration, investigation, orprosecution.”5 Some experts havesuggested that DOJ’s definitioncould encompass a series of crimesthat have nothing to do with com-puters. For example, if an auto theftinvestigation required a detective touse “knowledge of computer tech-nology” to investigate a vehicle’sidentification number (VIN) in astates’s department of motor ve-hicle database, under DOJ guide-lines, auto theft could be classifiedas a computer crime. While the ex-ample may stretch the boundaries oflogic, it demonstrates the difficul-ties inherent in attempting todescribe and classify computercriminality.

Over the past 15 years, severalinternational organizations, such asthe United Nations, the Organiza-tion of Economic Cooperation andDevelopment (OECD), the Councilof Europe, the G-8,6 and Interpol,all have worked to combat the prob-lem of computer crime.7 These or-ganizations have provided guidancein understanding this problem. Yet,despite their efforts, no single defi-nition of computer crime hasemerged that the majority of crimi-nal justice professionals use. Al-though many state and federal lawsdefine terms, such as “unauthorized

“

”

To decrease theincidence of

computer crime,law enforcementagencies must

work with privateorganizations....

Mr. Goodman, former head of the Los Angeles, California,Police Department’s Internet Unit, also has served as a law

enforcement policy advisor in the U.S. Department of the Treasury.

access to a computer system” and“computer sabotage,” neither Title18 nor any of the state penal codesprovide a definition for the termcomputer crime.

Defining criminal phenomenais important because it allows po-lice officers, detectives, prosecu-tors, and judges to speak intelli-gently about a given criminaloffense. Furthermore, generally ac-cepted definitions facilitate the ag-gregation of statistics, which lawenforcement can analyze to revealpreviously undiscovered criminalthreats and patterns.

Benefits of ReportingComputer Crime Statistics

Crime statistics serve an impor-tant role in law enforcement. First,they allow for the appropriate allo-cation of very limited resources.For example, if a community suf-fered a 73 percent increase in thenumber of sexual assaults, policeadministrators immediately wouldtake steps to address the problem by

adding more rape investigators, ex-tra patrol in the specific area, andincreased community awarenessprojects. The aggregation of crimedata allows police to formulate aresponse to a problem. Anecdotalevidence suggests that computercrime presents a growing problemfor the public, police, and govern-ments, all who rely on crime statis-tics for the development of theircriminal justice policies and theallocation of extremely limited re-sources. For police to respond suc-cessfully to these crimes in the fu-ture, they must increase theresources their departments cur-rently dedicate to the problem—adifficult task.

Agencies must justify training,equipment, and personnel costsnecessary to create a computer-competent police force. How canlaw enforcement managers justifythese costs to community leaderswithout appropriate data to substan-tiate their claims? Police mustdocument the problem with factual


data not information based on me-dia sensationalism or a few notori-ous attacks.

Second, accurate statistics oncomputer crime are important forpublic safety reasons. Computercrimes not only affect corporationsbut hospitals, airports, and emer-gency dispatch systems as well.Furthermore, surveys have indi-cated that many individuals fearfor their safety in the on-lineworld and worry about criminalvictimization.8

Businesses and individuals relyon law enforcement crime statisticswhen making important decisionsabout their safety. Many citizenscontact a local police station priorto the purchase of a home in aparticular neighborhood to inquireabout the number of burglariesand violent crimes in the area. Justas these data provide important

information for communities in the“real world,” the same is true incyberspace. For individuals and or-ganizations to intelligently assesstheir level of risk, agencies mustprovide accurate data about crimi-nal threats. Access to reliable andtimely computer crime statisticsallows individuals to determinetheir own probability of victimiza-tion and the threat level they faceand helps them begin to estimateprobable recovery costs.9 Law en-forcement organizations tradition-ally have taken a leading role inproviding crime data and crime pre-vention education to the public,which now should be updated toinclude duties in cyberspace.

Crime statistics facilitatebenchmarking and analysis of crimetrends. Crime analysts use criminalstatistics to spot emerging trendsand unique modi operandi. Patrol

officers and detectives use this datato prevent future crimes and to ap-prehend offenders. Therefore, tocount computer crime, a generalagreement on what constitutes acomputer crime must exist.

In many police departments,detectives often compile and reportcrime data. Thus, homicide detec-tives count the number of murders,sexual assault investigators exam-ine the number of rapes, and autodetectives count car thefts. Com-puter crime, on the other hand,comprises such an ill-defined list ofoffenses that various units within apolice department usually keep therelated data separately, if they keepthem at all. For example, the childabuse unit likely would maintainchild pornography arrest data andidentify the crime as the sexual ex-ploitation of a minor. A policedepartment’s economic crimes unitmight recap an Internet fraud scamas a simple fraud, and an agency’sassault unit might count an on-linestalking case as a criminal threat.Because most police organizationsdo not have a cohesive entity thatmeasures offenses where criminalseither criminally target a computeror use one to perpetrate a crime,accurate statistics remain difficultto obtain.

The Underreporting Problem

Generally, crime statistics canprovide approximations for crimi-nal activity. Usually, people accu-rately report serious crimes, such ashomicide, armed robbery, vehicletheft, and major assaults. Manyother criminal offenses, however,remain significantly underreported.

Police always have dealt withsome underreporting of crime. But,

Attacks against DOD Computers (1992-1995)

Source: U.S. Department of Defense's DefenseInformation Systems Agency

13,300 Blocked (35%)

38,000 Attacks

24,700 Succeeded (65%)

988 Detected (4%) 23,712 Undetected (96%)

267 Reported (27%) 721 Not Reporter (73%)

Protection

August 2001 / 13

new evidence suggests that com-puter crime may be the mostunderreported form of criminal be-havior because the victim of a com-puter crime often remains unawarethat an offense has even takenplace. Sophisticated technologies,the immense size and storage ca-pacities of computer networks, andthe often global distribution of anorganization’s information assetsincrease the difficulty of detectingcomputer crime. Thus, the vast ma-jority of individuals and organiza-tions do not realize when they havesuffered a computer intrusion or re-lated loss at the hands of a criminalhacker.

The U.S. Department ofDefense’s (DoD) Defense Informa-tion Systems Agency (DISA) hascompleted in-depth research oncomputer crime. From 1992 to1995, DISA attacked their ownDoD computer systems using soft-ware available on the Internet. Sys-tem administrators did not detectthe majority of attacks against DoDcomputers. Of the 38,000 attacksperpetrated, 96 percent of thesuccessful attacks went unde-tected. Furthermore, of the detectedattacks, only 27 percent werereported. Thus, approximately 1 in140 attacks were both detected andreported, representing only 0.7 per-cent of the total. If the detection andreporting of computer crime is lessthan 1 percent in the nation’s mili-tary systems, how often might thesecrimes go unreported when the in-tended victim is an individual or asmall business owner?

Convincing victims who havesuffered a loss to report the crime topolice constitutes another hurdle

facing law enforcement agencies.Surprisingly, many individuals, net-work administrators, and corporatemanagers do not realize that attacksagainst their networks constitute acrime. Worse, many victims whounderstand that a crime has takenplace may deliberately keep thesefacts from the police. Victims mayhave serious doubts about the ca-pacity of the police to handlecomputer crime incidents in anefficient, timely, and confidentialmanner. 10 These concerns are trueparticularly among large corpora-tions who fear damage to their repu-tation or, worse, their bottom line.

In banking and financial sectors,reputation is everything. Informa-tion that a criminal has infiltrated abank’s computers and accounts po-tentially could drive thousands ofcustomers to its competitors.

Businesses suffer a variety oflosses, both tangible and intangiblewhen hackers attack them. They canlose hundreds of millions of dollarsof value, brand equity, and corpo-rate reputation when a businessfalls prey to a hacker.11 Most of thecompanies that suffer Web attacks

see their stock prices fall.12 Further-more, in recent denial of service at-tacks, for example, the Yankee Re-search Group estimated that directrevenue losses due to blocked on-line transactions and the need forsecurity infrastructure upgrades ex-ceed $1 billion.13 Because of thehigh price of victimization, mostcompanies would not want to in-volve law enforcement and risk avery public arrest or trial attestingto the organization’s security andbusiness failings.

The difficulties in computercrime detection and the challengesposed by the reluctance of busi-nesses to admit victimization mightdemonstrate the underestimation ofall statistics related to cybercrimes.However, some less reputable com-puter security consulting compa-nies may overestimate computercrime and security problems toscare business leaders who, theyhope, will turn to these organiza-tions for consulting services andsupport.

An annual report compiled bythe Computer Security Institute inSan Francisco, California, and theFBI provides a variety of statisticson computer crime by surveyingcomputer security practitioners inboth the private and public sec-tors.14 The anonymity offered tosurvey respondents may contributeto the accuracy of their data. How-ever, the report does not directlypoll law enforcement organizationsabout the number of computercrimes reported to police. Many ex-perts believe that such a task shouldbe carried out by the government,but to date, no single governmentalbody maintains responsibility for

”

...accuratestatistics on

computer crimeare important for

public safetyreasons.

“

asking police forces about theprevalence of computer crimes re-ported and investigated.

The Development of a Definition

The development of a simple,widely agreed-upon definition ofcomputer crime among law en-forcement may form the first step incounting computer crimes. Thisdefinition would help police tocommunicate more effectivelyabout these offenses and begin toaccurately assess the prevalence ofcriminal victimization.

The earliest work in computersecurity provides a good foundationupon which police can build such adefinition. Traditionally, all com-puter security efforts have sought toprotect the confidentiality, integ-rity, and availability of informationsystems.15

Confidentiality in computersystems prevents the disclosure ofinformation to unauthorized per-sons. Individuals who trespass intoanother person’s computer systemor exceed their own authority in ac-cessing certain information, violatethe legitimate owner’s right to keepprivate information secret. Crimesthat violate the confidentiality ofcomputer systems include “unau-thorized access crimes” as definedby Title 18, U.S.C. Section1030(a)(2). Because breaking into acomputer begins with unauthorizedaccess to an information system,many believe this representsthe foundational computer crimeoffense.

Integrity of electronicallystored information ensures that noone has tampered with it or modi-fied it without authorization. Thus,any nonsanctioned corruption,

impairment, or modification ofcomputer information or equipmentconstitutes an attack against the in-tegrity of that information. Many ofthe malicious hacking activities,such as computer viruses, worms,and Trojan horses, fall within thiscategory. The same is true for indi-viduals who purposefully change ormanipulate data either for profit orsome other motivation, such as re-venge, politics, terrorism, or merelyfor the challenge.

Availability of computer dataindicates the accessibility of theinformation and that its associatedprograms remain functional whenneeded by the intended user com-munity. A variety of attacks, suchas the often-cited denial of ser-vice incidents, constitute a set ofcriminal activities that interfereswith the availability of computerinformation.

Together, computer crime inci-dents that attack the confidentiality,integrity, or availability of digitalinformation or services constitutean extremely precise and easily un-derstood foundational definition ofcomputer crime. In effect, these of-fenses might represent “pure-play”computer crimes because theyinvolve a computer system as thedirect target of the attack.

These three types of crimesshould form the basis for an interna-tionally agreed-upon definition ofcomputer crime. In reality, they al-ready are becoming the definitionof computer crime because eachstate has some law that prohibitsthese offenses. Furthermore, ananalysis of penal legislationin nearly 50 nations suggests thatat least one-half of those countriessurveyed—including most industri-alized nations—had laws in place orlegislation pending that prohibitedcrimes affecting the confidentiality,integrity, and availability of a com-puter.16 A variety of internationalorganizations also support legisla-tive efforts prohibiting pure-playcomputer crimes. Groups, such asthe United Nations, the G8, theCouncil of Europe, the OECD, andInterpol, each have delineated con-fidentiality, integrity, and availabil-ity offenses as forming the mini-mum basis of proscribed computercriminal behavior. The Council ofEurope, the 41-nation body ofwhich the United States is an ob-server, has been working on a drafttreaty on cybercrime for severalyears. If adopted as currentlydrafted, the treaty would ensure thatconfidentiality, integrity, and avail-ability offenses were outlawed in allsignatory nations to the treaty, anextremely significant step forwardin policing these crimes.17

Computer-Mediated Offenses

Defined broadly, the term com-puter crime or even the morecommon “computer-related crime”has described a wide variety ofoffenses. Traditional crimes, suchas fraud, counterfeiting, embezzle-ment, telecommunications theft,

”...computer crime

has becomean increasing

problem.“


August 2001 / 15

prostitution, gambling, money laun-dering, child pornography, fencingoperations, narcotics sales, andeven stalking, all could be computerrelated. Computer technology couldfacilitate or perpetrate each of theseoffenses.

These crimes, which representtraditional offenses perpetrated innew and, perhaps, more effectiveways, differ from pure-play com-puter crimes, which involve acomputer system as the direct targetof attack. Additionally, thesecrimes, as a group, demonstrate thatoffenders can use a computer as atool to commit the crime. The factthat a computer is not necessary tocommit the crime sets these of-fenses apart from the pure-playcomputer crimes. Prostitution,counterfeiting, and frauds havetaken place for hundreds of yearswithout any computer connection.The computer-mediated forms ofthese crimes pose problems for lawenforcement as well.

A traditional crime perpetratedwith a new, high-tech twist raisesthe same investigative and legalchallenges for police as pure-playcomputer offenses. The unique na-ture of information technology andcomputer networks moving atInternet speed often are highly in-compatible with traditional legalmodels of policing. Crimes involv-ing high technology cross multiplejurisdictions, are not covered by asingle cohesive international law,become harder to track because ofanonymity, result in expensive in-vestigations, complicate efforts inobtaining forensic evidence, and re-quire police to have specializedknowledge for a successful investi-gation. Because computer-related

crimes pose many of the same in-vestigative difficulties as pure-playcomputer crimes, documentingthese criminal offenses proves use-ful. Once captured, these data canhelp police to further refine theirallocation of resources and deter-mine relevant crime trends for com-puter-mediated illegal activities.

Offenses where a computer iscompletely incidental to the crimerepresents the third type of criminalactivity with possible computer in-volvement. In these cases, althougha criminal might have used a com-puter before, during, or after thecrime, it was not related directly to

a computer crime or as a computer-related crime.

Law Enforcement’s Response

How can agencies capture,analyze, and report data on theseoffenses in an efficient manner?In 1930, the U.S. Congress requiredthe Attorney General to producedata on the incidence of crime inAmerica. In turn, the Attorney Gen-eral designated the FBI to serve asthe national clearinghouse for thestatistics collected. Since that time,the FBI has administered theUniform Crime Reporting (UCR)Program, which obtains data basedon uniform classifications andprocedures for reporting from thenation’s law enforcement agenciesand presents this information in theannual Crime in the United Statespublication.18 While the traditionalUCR Summary Reporting System19

tracks only eight criminal offenses(murder and nonnegligent man-slaughter, forcible rape, robbery,aggravated assault, burglary, lar-ceny-theft, motor vehicle theft, andarson), the new UCR National Inci-dent Based Reporting System20

(NIBRS) tracks 46 criminal of-fenses in 22 categories, includingcrimes perpetrated using comput-ers.21 However, because the transi-tion from the traditional system toNIBRS will take considerable time,law enforcement executives proac-tively should review their internalprocedures to ensure that they haveappropriate policies in place totrack and recap pure-play computercrimes.

Agencies should consider add-ing the following question to crimeand arrest reports: “Was a computerused in the perpetration of this

the offending criminal activity. Forexample, a man who murders hiswife and confesses 3 weeks laterin an electronic document has notcommitted a computer crime—hehas committed a homicide. Leavingbehind computer-related evidencethat will require specialized foren-sic methods does not turn murderinto “cyber-homicide.” For this rea-son, police should not count of-fenses that generate computer-related evidence incidental to theperpetration of the offense as either

© Digital Stock


offense?” Many agencies alreadyinclude similar questions about theuse of firearms or the occurrence ofhate crimes on their internal reports.In fact, hate crimes may provide auseful lens through which to exam-ine computer-related crime. Hatecrimes often involve other crimes,such as assault, vandalism, andeven murder. But, knowing whatpercentage hate actually motivatesvandalism becomes a useful tool forpolice administrators attempting tounderstand and address communitydisorder problems.

Several efforts have begun topromote law enforcement’s under-standing of the prevalence and ef-fects of computer crime. The FBIand the National White CollarCrime Center recently took a bigstep forward in counting computer-related fraud. In 2000, these organi-zations established the InternetFraud Complaint Center (IFCC)22

to create a national reportingmechanism for tracking fraud onthe Internet. The center will trackstatistics on the number and type ofcomplaints and forward reported in-cidents to the appropriate law en-forcement agency. While IFCC willprove helpful in tracking Internetfraud data, it does not deal directlywith pure-play computer crimesthat violate the confidentiality, in-tegrity, and availability of data.Therefore, federal, state, and localcriminal justice agencies must takea more comprehensive approach.

Conclusion

To combat computer crime, lawenforcement must build an internalcapacity to define, track, and ana-lyze these criminal offenses. Evenif law enforcement has a highly

sophisticated and well-developedsystem to count computer crime,agencies still must overcome thepublic’s underreporting problem.Underreporting these crimes resultsfrom a failure on the part of thevictim to realize a crime has takenplace and an unwillingness to reportdiscovered incidents to police.

To decrease the incidence ofcomputer crime, law enforce-ment agencies must work with pri-vate organizations to ensure thatbusinesses become aware of poten-tial threats they face from computer

crime. These partnerships couldinclude working with technicalexperts from within and outside thegovernment to develop solutionsthat improve the prevention and de-tection of computer crimes. Ofcourse, even after detecting thesecrimes, police still must convincevictims to report them.

Police agencies must work withthe business community to gaintrust. Many community and prob-lem-oriented policing techniquescan help law enforcement as theydeal increasingly with computercrime investigations. Governmentand industry partnerships, and

police sensitivity about businesses’concerns, will help increase thenumber of these offenses brought tothe attention of the police.

Most police agencies do nothave the staff or funding to dealadequately with computer crime.Though the recent series of virusand denial of service attacks haveincreased public awareness of theproblem, law enforcement organi-zations must prepare for offenses bydeveloping a strategic and preventa-tive approach to deal with thisproblem.

Law enforcement managersmust ensure that they remaincapable of responding to thechanging faces of criminal activityin the 21st century. When comparedto murder, rape, or violent assaults,computer crime may seem trivial.But, a person who asks an executivewho loses his life savings due to thetheft of intellectual property fromhis computer hard drive will get adifferent answer. The teacher whoreceives daily calls from creditagencies because she was the victimof on-line identity theft understandsthe importance of policing com-puter related crime as well. Simi-larly, so does the AIDS researcherwho has 5 years of work destroyedby a computer virus. The mother ofthe 13-year-old girl who was luredacross state lines by a pedophilewill certainly demand a computer-competent police force capable ofhelping her. Each of these com-puter or computer-related crimesand their victims are real. Law en-forcement agencies have a responsi-bility to protect and serve the pub-lic, regardless of advances intechnology—a role that cannot beabdicated.

”

Several efforts havebegun to promote law

enforcement’sunderstanding of the

prevalence and effectsof computer crime.

“

Defining the problem, gather-ing crime data, and analyzing thenature and scope of the threat repre-sent natural steps in any problem-oriented policing approach. Newforms of criminality do not differ—a lesson law enforcement agenciesmust learn to make computer crimecount.

Endnotes

1 Andrew Glass, “Warding Off CyberThreat: “Electronic Pearl Harbor Feared,” The

Atlanta Journal and Constitution, June 25,1998.

2 Anick Jesdanun, “Internet Attacks RaiseConcerns About Risks of Growth,” San

Francisco Examiner, February 14, 2000.3 Michael Zuckerman, “Love Bug Stole

Computer Passwords,” USA Today, May 10,2000.

4 Jodi Mardesich, “Laws Across the CountryBecome Relevant in Connected World:Jurisdiction at Issue in Net Legal Cases,” San

Jose Mercury News, October 8, 1996, 1E.5 Catherine H. Conly, Organizing for

Computer Crime Investigation and Prosecu-

tion, National Institute of Justice, July 1989, 6.6 These countries, several major industrial

nations in the world, include the United States,the United Kingdom, France, Germany, Japan,Canada, Italy, and Russia.

7 “International Review of Criminal Policy:United Nations Manual on the Prevention andControl of Computer-Related Crime,” United

Nations Crime and Justice Information NetworkVienna: United Nations, 1994.

8 Tina Kelley, “Security Fears Still PlagueCybershopping,” The New York Times, July 30,1998, G5; Michael Stroh, “Online Dangers,Offspring Protection; Security: Parents CanFind Allies on the Family Computer to Protecttheir Children from Harm on the Internet,” The

Baltimore Sun, May 10, 1999, 1C.9 M.E. Kabay, “ISCA White Paper on

Computer Crime Statistics,” InternationalComputer Security Association (1998), http://

www.icsa.net/html/library/whitepapers/

index.shtml; accessed November 8, 2000.10 P.A. Collier and B.J. Spaul, “Problems

in Policing Computer Crime,” Policing and

Society 307, no. 2 (1992).11 Larry Kamer, “Crisis Mode: It’s About

Values,” The San Francisco Examiner,February 23, 2000, A15.

12 Carri Kirbie, “Hunting for the Hackers:Reno Opens Probe Into Attacks That DisabledTop Web Sites,” The San Francisco Chronicle,February 10, 2000, A1.

13 “7 Days: Web Attacks Raise SecurityAwareness,” Computing, February 17, 2000, 17.

14 R. Power, “2000 CSI/FBI ComputerCrime and Security Survey,” Computer Secu-

rity Issues and Trends 6, No. 1, Spring 2000.15 These three themes provide the basis for

the Organization for Economic Cooperation andDevelopment’s (OECD) Guidelines for the

Security of Information Systems and areincluded in most textbooks, legislative acts, andmedia articles on computer crime. The OECDdocument is available at http://www.oecd.org//

dsti/sti/it/secur/prod/reg97-2.htm; accessedNovember 8, 2000.

August 2001 / 17

For further information regardingcomputer crime, contact the author [email protected].

Clarification

he article,“Police Pursuits and Civil Liability,” whichappeared in the July 2001 issue, contained an error. TheT

last sentence of the third paragraph on page 19 should read asfollows:

The majority, however, concluded that the police conductin this case did not “shock the conscience” and ruled infavor of the police.

16 Based upon research conducted by theauthor.

17 For further information, see http://

conventions.coe.int/treaty/EN/

cadreprojets.htm.18 U.S. Department of Justice, Federal

Bureau of Investigation, Crime in the United

States (Washington, DC, 1999).19 In the summary program, law enforcement

agencies tally the number of occurrences of theoffenses, as well as arrest data, and submitaggregate counts of the collected data inmonthly summary reports either directly to theFBI or indirectly through state UCR programs.

20 In NIBRS, law enforcement agenciescollect detailed data regarding individual crimeincidents and arrests and submit them inseparate reports using prescribed data elementsand data values to describe each incident andarrest.

21 NIBRS provides the capability to indicatewhether a computer was the object of the crimeand to indicate whether the offenders usedcomputer equipment to perpetrate a crime. Thisensures the continuance of the traditional crimestatistics and, at the same time, “flags”incidents involving computer crime. Foradditional information on NIBRS, contact theNIBRS Program Coordinator, Criminal JusticeInformation Services, 1-888-827-6427.

22 Jerry Seper, “Justice Sets Up Web Siteto Combat Internet Crimes,” The Washington

Times, May 9, 2000, A6, www.ifccfbi.gov;accessed November 8, 2000.


ith these words, for-mer FBI director LouisFreeh captured the es-

“It is imperative that, communityby community, we find the waysto protect our children andsecure for them the safe placesthey need to learn the hardbusiness of growing up, to learnright from wrong, to learn to begood citizens.” 1

Wsence of the challenge that commu-nities face in addressing school vio-lence. Recent high profile schoolshootings have led to an atmo-sphere of fear and apprehensionamong many communities aboutthe safety of their schools. Whilestatistics show that schools, in gen-eral, remain safer than their sur-rounding neighborhoods, everycommunity must take steps to ad-dress school violence. In doing so,many questions may arise. Wheredoes a community begin the pro-cess of addressing school vio-lence? How can schools prevent orreduce school violence? How can

communities plan for handlingschool violence when it does occur?Should law enforcement includeexercises and training as a part ofthese preparations?

DEFINING SCHOOLVIOLENCE

To address school violence,communities first must understandwhat it is and who is involved.2 Thedefinition of school violence, anunacceptable social behavior rang-ing from aggression to violence thatthreatens or harms others, goes be-yond highly publicized incidents ofmass bloodshed to include acts,such as bullying, threats, and extor-tion. Therefore, school violencespans a broad range of antisocial

Addressing School ViolencePrevention, Planning, and PracticeBy FRANCIS Q. HOANG, M.C.J.

August 2001 / 19

behavior that law enforcement mustaddress.

IDENTIFYINGPERPETRATORS OFSCHOOL VIOLENCE

Historically, individuals whocommit school violence fall intoone of two groups. The first group,“insiders” (e.g., students), usuallycan be divided into two broader cat-egories—sociopaths (e.g., bullieswho instigate fights and manipulateothers) and psychopaths (e.g., so-cially inept loners who have the po-tential for great violence).3 The sec-ond group involves visiting“outsiders,” such as students fromother schools or former students.

Communities must prepare forpotential school violence from ei-ther of these groups. No standardprofile of a school violent offendercurrently exists. At best, certainwarning signs may indicate poten-tial violence and specific factorsmay denote a greater likelihood ofan individual carrying out violence.

ADDRESSING SCHOOLVIOLENCE

Primarily, communities can ad-dress school violence through threesimple steps—prevention, plan-ning, and practice. Prevention re-fers to taking actions to reduce orprevent school violence from occur-ring, planning determines what ac-tions to take if school violence doesoccur, and practice entails rehears-ing plans and modifying them whenneeded.

Prevention

Various publications provide acomprehensive overview of school

“

”

While not everyschool may have

to deal with aviolent shooter,

nearly everyschool experiences

violent threats.

Mr. Hoang, former deputy chief of police for the Fort Leavenworth,Kansas, Police Department currently serves as an advisor

to the Rockland County, New York, Police Academy.

violence prevention programs andoffer various steps communities cantake to help prevent violence intheir schools.4 First, communitiesshould establish partnerships be-tween schools and other publicagencies. Because school violenceremains a community problem, itrequires collaboration from all resi-dents, agencies, and businesses.Schools, police, business leaders,and elected officials all must coop-erate to address school violence.

Next, communities shouldidentify and measure the problem.School officials, working with lawenforcement and other communityagencies, should collect informa-tion that shows the size and scopeof violence in their schools. Thisimportant step ensures that pre-vention efforts revolve around thecommunity’s specific problems.

Communities also should setgoals and measurable objectives.School officials, collaborating withparents and students, should setgoals (with broad results) and spe-cific objectives (with measurable

results) for their school violenceprevention efforts.

Last, communities should iden-tify appropriate research-based pro-grams and strategies. The key topreventing and reducing school vio-lence combines long-term strategieswith short-term interventions.Community leaders and school ad-ministrators should research andexamine various school violenceprevention options and select tech-niques most appropriate for theirschools. Such options fall into threebroad categories.5

The first category involves en-vironmental modifications and sug-gests that police, trained in crimeprevention through environmentaldesign, or school security manag-ers, who have attended specializedcourses in physical security, auditor survey each school. Thesepersonnel should examine aschool’s physical environment andrecommend modifications to pre-vent or reduce violence.

The second category includesoptions for preventing and


controlling violence based onschool management. For example,this may entail establishing behav-ior and discipline codes, the use ofcriminal penalties against selectedstudents, or the placement of prob-lem students into alternative educa-tional institutions.

The final category, educationand curriculum-based preventiontechniques, could include teachingconflict resolution courses, estab-lishing mentoring programs, devel-oping self-esteem initiatives, or

instituting community-orientedpolicing crime prevention efforts.

After reviewing the various op-tions, administrators should workwith the entire community to care-fully implement the selected pre-vention measures. Some preventivetechniques may require additionalresources, outside approval, orlong-term planning to provesuccessful.

Every community should in-clude an early identification andintervention program in their school

safety efforts. These programs helpprevent school violence by educat-ing parents, teachers, and studentsabout the signs of potential violenceand, ultimately, allow the troubledstudent to receive help before vio-lence occurs.6

Another critical element of aschool safety program involves athreat management plan. Whilenot every school may have to dealwith a violent shooter, nearlyevery school experiences violentthreats. Communities and school

See the OJJDP Annual Report on SchoolSafety for a listing of model programs andadditional resources (http://ojjdp.ncjrs.org/pubs/).

• Installing metal detectors and videocameras

• Hiring security guards

• Adopting dress codes

• Removing lockers

• Controlling access into buildings

• Identifying all campus visitors

• Placing adults in hallways

• Monitoring entrances

• Increasing lighting

• Establishing behavior and discipline codes

• Using criminal penalties against selectedstudents

• Placing students into alternative educationalinstitutions

• Conducting lawful and necessary searches

• Establishing community information-sharingprotocols

Possible Environmental Modifications

School Management-BasedStrategies

• Teaching individuals conflict resolution

• Establishing mentoring programs

• Creating self-esteem initiatives

• Developing community-oriented policingand crime prevention efforts

Education- and Curriculum-BasedPrevention Techniques

School Violence Prevention Options

August 2001 / 21

administrations must prepare toassess threats they receive and howto respond appropriately to them.7

After implementation, adminis-trators should, at regular intervals,evaluate the school violence pre-vention plan against the goals andobjectives previously set. Adminis-trators must prepare to revise theplan based on the results of theevaluation.

Planning

Even with the best preventionplan in place, communities stillmust prepare for school violence in-cidents. Planning how to respond inthe event of school violence re-quires a communitywide effort andincludes numerous tasks.

Law enforcement should con-duct a tactical survey of schools.8

While the security audit serves toreduce or prevent school violence,the tactical survey gathers informa-tion for use in planning a response.The survey forms the foundation forall other planning efforts and shouldbe accomplished before planningbegins. Law enforcement, workingwith school administrators, shouldprepare and distribute tactical sur-veys that include elements, such aslocal maps, aerial photographs,property diagrams and floor plans,and interior and exterior photo-graphs of the school.

School administrators shoulddevelop emergency response plans.Because faculty are often the firstto respond to calls of school vio-lence, their initial actions can havetremendous impact on how safelyand quickly a situation is resolved.Each school should have proce-dures in place to handle different

“ Communitiesmust prepare forpotential school

violence....

”

emergencies, including variousschool violence incidents. An easilyaccessible checklist that includeshow and when to notify emergencyservices can prove most beneficial.Law enforcement and school offi-cials should work together to de-velop procedures that cover suchemergencies as anthrax scares,bomb threats, fires, severe inclem-ent weather, bus accidents, andshootings.

Developing first responder andimmediate action drills also willprove beneficial. Past incidentshave shown the need for rapid, co-ordinated response by the first of-ficers arriving at a school violenceincident. Patrol officers should es-tablish a perimeter, gather informa-tion, resolve disputes, and, depend-ing on the situation, locate andneutralize shooters. Local policeagencies should establish andrehearse a mutual aid plan to ensurethe use of the same responseprocedures.

Many school violence incidentsdo not require a tactical presence ormay end before police tacticalteams can deploy. However, tacti-cal teams still should develop pro-cedures for operating in a school

environment. The plans shouldinclude how to integrate tacticalteams with police already on thescene and how to deploy multipleteams in the event of a long-term orlarge-scale situation.

A large-scale school violenceincident often requires more re-sources than one agency can pro-vide and requires a joint response ofmany different organizations. Po-lice administrators should developan emergency management planthat outlines command, control, andcommunication procedures for amultiagency response, as well asgeneral areas of responsibility foreach agency.

Because school violence inci-dents generate media interest, agen-cies must develop a plan for han-dling the media prior to an incident.Police and schools should prepareto assist the media by providingtimely briefings, designating a me-dia representative for updates, andestablishing areas safe for filming,interviews, and other mediaactivities.

School officials should developlock-down procedures to secure stu-dents and faculty in a school vio-lence situation. They also shouldhave procedures for evacuating stu-dents and faculty to safe areas, es-tablishing accountability, conduct-ing immediate counseling ordebriefings (if required), and coor-dinating the pickup of students byparents. Schools should work withpolice in developing these plans be-cause tactical and investigative con-siderations may impact the evacua-tion or release of students.

In a worst-case scenario, schoolviolence can result in bloodshed—a


• Identify clear training objectives

• Conduct coordination before the exercises

• Hold exercises after developing plans and completing training

• Start with simple tasks and work progressively toward moredifficult ones

• Conduct after-action reviews

• Link future training to results from past exercises

Keys To Successful Exercises

reality that officials must prepare tohandle. School, police, and emer-gency response personnel shouldwork together to develop a plan totriage, treat, and evacuate those in-jured in a school violence situation.

Even after the successful reso-lution of a school violence incident,much work remains. Communitiesshould develop a plan to providecounseling and assistance to stu-dents, faculty, and emergency per-sonnel. Police need to develop aninvestigative plan, establish evi-dence recovery methods, and deter-mine when they will return controlof the building to school officials.School administrators should pre-pare to find an alternate location tohold classes while police conducttheir investigation.

Due to the size and complexityof a school violence response, thevarious agencies involved shoulddevelop and sign mutual aid andnotification agreements. Theseagreements should specify rolesand responsibilities for eachagency.

School violence planning re-quires a large investment of time,personnel, and resources. How-ever, the possible benefits more

than justify the cost. Communitiesthat make planning a priority willbecome prepared not only forschool violence but also for lessersituations that may require a coordi-nated response.

Practice

The best-developed plans be-come useless if they are never re-hearsed or if no one knows theyexist. Practice validates plans andidentifies needed changes. It famil-iarizes personnel with plans andpartners, increases the confidenceof personnel involved, and gives thecommunity a sense of security.Additionally, conducting drills canhelp identify areas for futuretraining. Practice remains a criticalstep in preparing for school vio-lence and should include rehears-ing school emergency responseplans, first-responder action drills,tactical team actions, post-incidentcommand exercises, media plans,mass casualty plans, multiagencyexercises, and field exercises. Be-cause no substitute for practiceexists, this step remains criticalin addressing school violence andrequires a strong commitment bycommunities.

FACING CHALLENGES

In addressing school violence,communities face several key chal-lenges. They must learn how to bal-ance the need for a secure environ-ment with that of a learningenvironment. While many parentsand schools welcome the increasedemphasis on security, others worrythat schools have become fortressesthat hamper learning. Communitiesmust examine their approach care-fully and strike the right balance fortheir students.

Communities must decide howto balance student and parentalrights with a community’s compel-ling interest in safety. Many of thetechniques proposed to preventschool violence may infringe uponstudent or parental rights. At thesame time, administrators have a re-sponsibility to maintain safeschools and must balance thesecompeting interests when develop-ing a school safety plan.

Additionally, communitiesmust consider how to weigh theneeds of many students against theneeds of a few students. Manyteachers and parents applaud recentefforts at getting help for at-riskyouth before violence erupts, yetsome individuals criticize these ef-forts as putting the needs of a fewstudents ahead of the needs of themajority of the students. Communi-ties must decide how far theyshould go to address some students’special needs and consider theimpact on other students.

CONCLUSION

Because every community isunique, individual approaches toaddressing school violence shouldbe slightly different. Communities

should seek the advice and helpof other communities that have ad-dressed similar problems, adaptthese solutions, and tailor their ap-proach to their specific situations.

Communities must take a teamapproach to addressing schoolviolence. Addressing specific is-sues requires cooperation amongschools, families, police, and othercommunity members. If school vio-lence should occur, a communitywill rely on many agencies torespond. No one agency holdsthe key; rather, teamwork stands asthe definitive method of acheivingsuccess.

Remaining well informed rep-resents the best approach whenaddressing school violence. Com-munity officials should refer to theplethora of resources available to

help them make informed decisionsabout school violence.

Finally, and perhaps most im-portant, communities must take aproactive approach when address-ing school violence. As previoustragic events have shown, noamount of preparation can evereliminate school violence, butproper preparation can helpreduce its impact on Americancommunities.

Endnotes

1 U.S. Department of Justice, FederalBureau of Investigation, “The School Shooter:A Threat Assessment Perspective, 2000,”(Washington, DC, 2000); http://www.fbi.gov;accessed March 14, 2001.

2 For additional information on schoolviolence, see S. Band and J. Harpold, “SchoolViolence: Lessons Learned,” FBI Law

Enforcement Bulletin, September 1999, 9-15.

3 Dale Yeager, quoted in R. Kanable,“Patrolling the Schools,” Law Enforcement

Technology, September 1999.4 See, for example, U.S. Department of

Justice, Office of Juvenile Justice andDelinquency Prevention, “The Annual Reporton School Safety,” (Washington, DC); http://

ojjdp.ncjrs.org/pubs/violvict.html; accessedFebruary 23, 2001.

5 Alexander Volokh and Lisa Snell, “SchoolViolence Prevention: Strategies to Keep SchoolsSafe,” Reason Public Policy Institute, January1998; http://www.rppi.org/education/

ps234.html; accessed February 23, 2001.6 The U.S. Department of Education has

published “Early Warning, Timely Response: AGuide to Safe Schools,” which describes how todevelop and implement an early identificationand intervention program; http://www.ed.gov/

offices/OSERS/OSEP/earlywrn.html; accessedMarch 15, 2001.

7 For additional information, see, supranote 1.

8 For additional information, see F. Hoang,“Preplanning for School Violence,” Law and

Order, December 2000, 107-109.

T he FBI Law Enforcement Bulletin staff invitesyou to communicate with us via e-mail. Our

Internet address is [email protected] would like to know your thoughts on

contemporary law enforcement issues. Wewelcome your comments, questions, and

suggestions about the magazine. Pleaseinclude your name, title, and agency

on all e-mail messages.Also, the Bulletin is available

for viewing or downloading on anumber of computer services,as well as the FBI’s home page.The home page address ishttp://www.fbi.gov.

The Bulletin’sE-mail Address

August 2001 / 23


Book Review

The Loss of Innocents: Child Killers andTheir Victims by Cara E. Richards, ScholarlyResource, Inc., Publishing, Wilmington,Delaware, 2000.

The Loss of Innocents: Child Killers andTheir Victims presents a compilation of profes-sional research efforts from 1983 through the1990s that provides an assessment of over 200cases of children and adults who participated inmultiple murders. It supplements other researchon homicide and violence, including thoseresearch and publication efforts conducted bythe U.S. Department of Justice.

In view of the confidential sensitivity andprotection afforded juveniles, the author’s use ofdata extracted from newspapers of several majorU.S. cities proved notable. The author identifiedand analyzed demographic information in termsof the perpetrators’ patterns, random and selectedvictims, relationship with each other, rationalefor killing, and methods used. Data ranged fromchildren as the perpetrators or victims of massand serial murdering to children as the victims ofunintended and unfortunate cases of being in thewrong place at the wrong time. Those victims ofbad decisions—illicit drugs in the home, animalattacks, home accidents, and drive-by shootings—represent the result of placing children at highrisk, which cost them their lives.

Several case summaries on females as massmurderers and serial killers of children and adultsplaced emphasis on agencies revisiting their for-mal and accepted definitions of child killers. Theauthor further established that the male killer ofchildren specialized in a pattern involving target-ed strangers, certain sex and age groups, or physi-cal appearance with sexual motivations, while thefemales studied killed children they knew.

Research tables, in matrix form, presentthe data for the reader to analyze and compare.Identification of significant research problemsand causal explanations supported by discussionof key factors surrounding child killers andvictims comprise a vital chapter resulting fromthe author’s efforts. Also, the author includes aninteresting topology grouping of multiple childkillers into five categories—disciple killer, familyannihilator, pseudo-commando, disgruntledemployee, and set-and-run killer.

The last section of the book contains 17 sig-nificant recommendations of the study for mul-tiple jurisdictions to assess for reducing violenceagainst children. They range from clarifying,simplifying, and standardizing definitions to usingchild killer case reviews for learning more aboutperpetrator and victim patterns of killings toincrease gun safety education and legislationfor adults and children.

The Loss of Innocents: Child Killers andTheir Victims is well documented, correlated, andpresented for those having no prior experience orknowledge of the subject to such professionals asjuvenile and adult court judges and probationofficers, prosecutors, and state legislators. It alsowill interest experienced and newly appointedlaw enforcement officers, homicide investigators,social workers and service agencies, emergencyroom medical personnel, prosecutors, and investi-gative media reporters.

Reviewed by Larry R. MooreCertified Emergency Manager

International Association of Emergency ManagersKnoxville, Tennessee

August 2001 / 25

Legal Digest

he Fifth Amendment of theU.S. Constitution states, inpart, that “...no person shall

the U.S. Supreme Court specificallyadopted the common law rule that avoluntary confession is presumed tobe reliable and, therefore, admis-sible. The Court held in Hopt that aconfession is voluntary if not in-duced by threat or promise.8

Subsequent decisions of theU.S. Supreme Court recognized twoconstitutional rationales for thevoluntariness requirement: the FifthAmendment right against self-in-crimination and the Due ProcessClause of the Fourteenth Amend-ment. In 1897, the Supreme Courtfirst asserted in Bram v. UnitedStates9 that the Fifth Amendmentprivilege against self-incrimination

was “but a crystallization”10 of thecommon law rule that only volun-tary confessions are admissible asevidence. Then, in 1936, the Su-preme Court in Brown v. Missis-sippi11 invoked the Due ProcessClause as another constitutional ba-sis for its requirement that a confes-sion be made voluntarily. Thereaf-ter, a confession was admissibleonly if voluntary within the mean-ing of the Due Process Clause.12

The Supreme Court cases thatfollowed Brown13 refined the testinto an inquiry that examined“whether a defendant’s willwas overborne” by the circum-stances surrounding the giving of

MirandaRevisitedDickerson v.United StatesBy THOMAS D. PETROWSKI, J.D.

Tbe compelled in any criminal caseto be a witness against himself.”Like other Constitutional provi-sions, this requirement has “boththe virtue of brevity and the vice ofambiguity.”1 This Fifth Amend-ment provision formed the basis ofthe Supreme Court’s decisionin Miranda v. Arizona.2 Recently,in Dickerson v. United States,3 theSupreme Court further defined theimpact of the Miranda decision onthe law of interrogations. Thisarticle examines the Dickerson de-cision and its implications for lawenforcement.

THE ADMISSIBILITYOF CONFESSIONSBEFORE MIRANDA

Prior to Miranda,4 the admissi-bility of incriminating statements ofa suspect was evaluated under avoluntariness test, which developedunder early common law. Eventu-ally, courts began to recognize thatcertain confessions were not trust-worthy.5 Although different stan-dards were used to determinewhether a confession was trust-worthy, a confession generally wasconsidered to be reliable only ifmade voluntarily.6 In Hopt v. Utah,7

© Mark C. Ide


a confession and took into account“the totality of all the surroundingcircumstances—both the character-istics of the accused and the detailsof the interrogation.”14 The rulegoverning the admissibility of con-fessions in federal court remainedthe same for nearly 180 years: con-fessions were admissible at trial ifmade voluntarily.

THE MIRANDA DECISION

A New Approach

In 1966, the Supreme Court de-cided Miranda v. Arizona. In whatis arguably its most controversialcriminal law decision,15 the Su-preme Court, in a 5-4 decision,changed the focus of the inquiry todetermine the admissibility of sus-pects’ incriminating statements byannouncing a new approach. Spe-cifically, the Court made the case-by-case totality-of-the-circum-stances voluntariness analysis asupplementary consideration andidentified a new primary focus. TheCourt held that any statement aris-ing from the custodial interrogation

of a suspect is presumed involun-tary and, therefore, inadmissibleunless the police first provide thesuspect with four specific warn-ings.16 The four warnings are—17

1) that the suspect has theright to remain silent;

2) that any statements hemakes can be used againsthim;

3) that he has the right to thepresence of an attorney duringquestioning; and

4) that an attorney will beappointed for him if he cannotafford one.

The Court did not eliminate thevoluntariness inquiry. Consequent-ly, an incriminating statement maybe prefaced by Miranda warningsbut still be involuntary, which mayresult in suppression of the state-ment. That is, a law enforcementinterrogator cannot physicallythreaten or otherwise inappropri-ately coerce a confession simplybecause the warnings have beengiven and waived. Likewise, aclearly voluntary statement that was

not prefaced by complete Mirandawarnings also may result in sup-pression. For a statement to be ad-missible under Miranda, it has to beboth voluntary and prefaced bycomplete Miranda warnings, whichare intelligently, knowingly, andvoluntarily waived. The Court alsohas held that once individuals in-voke their right to counsel, officersimmediately must cease interroga-tion until counsel is present or thesuspects initiate further contact andunequivocally communicate the de-sire to proceed without counsel.18

Passage of 18 U.S.C. § 3501.

In Miranda, the Court said that“[w]e encourage Congress and theStates to continue their laudablesearch for increasingly effectiveways of protecting the rights ofthe individual while promotingefficient enforcement of ourcriminal laws. However, unlesswe are shown other procedureswhich are at least as effective inappraising accused persons oftheir right of silence and in assur-ing a continuous opportunity to ex-ercise it, the...safeguards must beobserved.”19

In 1968, 2 years after Mirandawas decided, Congress accepted theCourt’s invitation to show “otherprocedures” and enacted 18 U.S.C.§ 350120 (hereafter § 3501).Through § 3501, Congress at-tempted to overrule Miranda andreinstate the voluntariness testas the sole determinant for admissi-bility of confessions in federalcourt. The statute explicitly aban-doned the requirement of pre-inter-rogation warnings in favor of anapproach that considers such warn-ings only one factor in determining

The Dickersondecision didnot alter the

requirementsMiranda placed onlaw enforcement.

”Special Agent Petrowski is a legalinstructor at the FBI Academy.

“

August 2001 / 27

the voluntariness of a subject’s in-criminating statements. This leftlaw enforcement agencies in aquandary over which rule to follow.

Despite the passage of § 3501,law enforcement agencies generallyfollowed the Miranda rule and ig-nored the statute. This is most likelydue to the common approach of lawenforcement agencies to take themore conservative option whensuch a conflict presents itself. TheDepartment of Justice, through theseven administrations betweenMiranda and Dickerson, refused toargue § 3501 and also followed theMiranda decision in confessioncases.

THE DICKERSON CASE

The Facts

On January 24, 1997, an indi-vidual robbed the First VirginiaBank in Old Town, Alexandria,Virginia, of approximately $876.An eyewitness saw the robber exitthe bank, run down the street, andget into a vehicle. Subsequent in-vestigation into the bank robberyrevealed that the getaway car wasregistered to Charles T. Dickersonof Takoma Park, Maryland. OnJanuary 27, 1997, FBI agents and anAlexandria police detective trav-eled to Dickerson’s residence. Theagents knocked on Dickerson’sdoor and identified themselves.After a short conversation, anFBI agent asked Dickerson if hewould accompany them to theFBI field office in Washington,D.C. Dickerson agreed. While inDickerson’s apartment, the agentssaw evidence of the bank robbery inplain view.

At the FBI field office,Dickerson was interviewed by anFBI agent and a detective of theAlexandria Police Department. It isuncontested that at some point dur-ing the interview, Dickerson appro-priately was given his Mirandawarnings and that he knowingly andvoluntarily waived his rights inwriting. It also is uncontested thatDickerson confessed to the Alex-andria bank robbery and numer-ous others and identified an accom-plice. During the interview of

and (d), and on three counts of usinga firearm during, and in relation to,a crime of violence in violation of18 U.S.C. § 924(c)(1).21

At the inevitable evidence sup-pression hearing, Dickerson testi-fied that his confession was madebefore he received his Mirandawarnings and, therefore, violatedMiranda. The interviewing FBIagent testified that Dickerson con-fessed after receiving his Mirandawarnings and voluntarily waivingthem. There was no question thatthe confession was voluntary, butonly whether it was made before orafter Dickerson was warned andwaived his Miranda rights. The dis-trict court judge suppressed hisconfession. The suppression of theconfession was appealed to theU.S. Court of Appeals for theFourth Circuit.

The Fourth Circuit decidedthere was sufficient evidence in therecord to support the district court’sfinding that Dickerson had not beengiven his Miranda rights prior toconfessing.22 However, the FourthCircuit reversed the lower court’sdecision to suppress the confession,finding the lower court used thewrong standard to judge theconfession’s admissibility. TheFourth Circuit decided that by pass-ing § 3501, Congress had lawfullychanged the test for the admissionof confessions in federal court fromthe stricter Miranda rule to the lessstringent totality-of-the-circum-stances test. Using that less strin-gent standard, the Fourth Circuitfound that the government’s failureto give Miranda warnings wasonly one factor to be consideredwhen judging voluntariness of the

Dickerson, the interviewing agentsmade application for, and received,a telephonic search warrant forDickerson’s apartment. The searchwarrant was executed while the in-terview continued. The agents con-ducting the search found substantialevidence implicating Dickerson inseveral bank robberies. He was ar-rested and indicted on one count ofconspiracy to commit bank robberyin violation of 18 U.S.C. § 371,on three counts of bank robberyin violation of 18 U.S.C. § 2113(a)

“Departments mustensure that theirofficers do not

interrogate ‘outsideMiranda,’ and

immediately abandonany condoned practiceor policy of intentionalviolations of Miranda.

”


confession. Because the lower courtalready had found Dickerson’s con-fession to be voluntary, the FourthCircuit reversed. The U.S. SupremeCourt agreed to finally decide theissue.

The Decision

The U.S. Supreme Court issuedits opinion on Dickerson on June26, 2000. In a 7-2 decision, the courtheld that Miranda is a Constitu-tional decision and, therefore, couldnot be overruled by an Act of Con-gress.23 The Court not only affirmedMiranda but also declared it a Con-stitutional rule.24 Aside from elabo-rating in great detail as to why itsfinding that Miranda is Constitu-tionally required was consistentwith its original decision and itsprogeny, the Court gave two othernoteworthy justifications. TheCourt found that “Miranda has be-come embedded in routine policepractice to the point where thewarnings have become part of ournational culture.”25 The Court alsosaid “...experience suggests that thetotality-of-the-circumstances testwhich § 3501 seeks to revive ismore difficult than Miranda forlaw enforcement officers to con-form to, and for courts to applyin a consistent manner.”26 Thus,32 years after enactment, § 3501has been ruled unconstitutional, andthe precustodial interrogationrequirements of Miranda havebeen given “a permanent place inour jurisprudence.”27

PRACTICALIMPLICATIONS:CIVIL LIABILITY

The Supreme Court’s decisionin Dickerson was both a surprise

and a disappointment to many.28

The decision clearly elevates thewarning requirements of Mirandato Constitutional proportions; thesingle most significant practical im-pact of which is potential civil li-ability of individual law enforce-ment officers and their departmentsresulting from intentional viola-tions of the warning requirementsmandated in Miranda.

Section 1983 requires inten-tional conduct or gross negligenceby the government employee. Merenegligence is not actionable under§1983.33 For example, if an interro-gator were to negligently give de-fective warnings, this would notresult in §1983 liability.

In addition to the individual of-ficer being exposed to §1983 liabil-ity, the agency or department alsocan be sued for Constitutional vio-lations arising from official policyor other customs or practices of theentity.34 Inadequate training alsomay be the basis for liability if thefailure to train amounts to a deliber-ate indifference to rights of per-sons with whom police come incontact.35

Prior to the Supreme Court’sdecision in Dickerson, the clear ma-jority view among the federal cir-cuits was that no cause of action formoney damages existed under§1983 where police officers alleg-edly violated Miranda principles byeither failing to give Miranda warn-ings or by continuing to question adefendant in custody after his re-quest for an attorney.36 The ratio-nale prior to Dickerson was that theU.S. Constitution did not guaranteethe right to Miranda warnings.Dickerson only can be read to havechanged this and to have createdthe requisite Constitutional rightthat satisfies the previously void§1983 element. While the Court inDickerson did not expressly addressthe issue of civil liability and may atsome future time limit §1983 liabil-ity exposure in the Miranda con-text, the only prudent course for lawenforcement officers today is toproceed assuming that this §1983cause of action is now viable.

“...the Court heldthat Miranda isa Constitutional

decision and,therefore, could notbe overruled by anAct of Congress.

”Title 42 U.S.C. § 198329 (here-after §1983) provides a federal rem-edy for deprivations of federal Con-stitutional rights by authorizingsuits against public officials andgovernment entities.30 To recoverunder § 1983, a civil rights plaintiffmust prove two elements: 1) inten-tional deprivation of a federallyprotected right “secured by theConstitution and the laws of theUnited States,” and 2) state actionunder color of law.31 Section 1983was applied to federal law enforce-ment agencies in Bivens v. Six Un-known Federal Narcotics Agents.32

A host of individual state causes ofaction mirror §1983 suits that canresult in liability to the departmentand personal liability to the indi-vidual officer.

August 2001 / 29

In any §1983 civil action, theissue of qualified immunity is al-ways present. Qualified immunityis available to defendants in a §1983suit if they can show the actions inquestion did not violate any clearlyestablished law of which theyshould have been aware at the time;in other words, the actions werewithin the law and objectively rea-sonable.37 Because the issue ofMiranda’s Constitutionality hasbeen squarely addressed by the Su-preme Court—and thus “clearly es-tablished”—it is unlikely that lawenforcement officers (or their de-partment) would be entitled toqualified immunity for intentionalviolations of the Miranda require-ment.38

The potential for actual (com-pensatory) damages for such a law-suit obviously would be limited.But there is always the possibility ofpunitive damages39 and attorney’sfees,40 which make even minor vio-lations a potential suit. As any expe-rienced law enforcement managerunderstands, there is no such thingas an insignificant §1983 lawsuit.Even suits that are ultimately wonare costly and substantially hinderthe mission of the department, thusaffecting public safety. In §1983lawsuits, “the only true victoryis the avoidance of conflictcompletely.”41

PRACTICAL GUIDANCE

The Dickerson decision did notalter the requirements Mirandaplaced on law enforcement. It did,however, establish liability expo-sure to law enforcement officersand their departments for failure tocomply with those requirements.

Stay “Inside” Miranda

In Supreme Court decisionssubsequent to Miranda, the Courtrecognized legitimate uses for state-ments taken in technical violationof the Miranda requirements butvoluntarily made.42 Such state-ments may be used to impeach adefendant’s trial testimony if thedefendant takes the stand and testi-fies inconsistently with prior state-ments43 or at a subsequent trial forperjury resulting from the false trial

Departments must ensure thattheir officers do not interrogate“outside Miranda,” and immedi-ately abandon any condoned prac-tice or policy of intentional viola-tions of Miranda. The clearestexample of this is the continuationof questioning after a suspect un-equivocally has invoked his right tocounsel. This also would includethe practice of interrogating beforethe warnings are given (with a viewtoward having suspects make in-criminating statements and then begiven the warnings, which are likelyto be waived because they alreadyhave incriminated themselves).While it is likely that voluntarystatements made in technical viola-tion of Miranda will remain admis-sible for the limited purposes de-scribed above, they clearly areexposing interrogating officers andtheir departments to civil liability.Departments must avoid even theappearance of intentionally con-ducting interrogations not in strictcompliance with Miranda.

Do Not “Over-Mirandize”

Law enforcement departmentsmust be mindful of another obvioustrap for those who are unwary orlack confidence in the practical ap-plications of Miranda: the tendencyto repeatedly or unnecessarily giveMiranda warnings. Any experi-enced law enforcement interrogatorhas seen this in practice. In an effortto guarantee absolute Mirandacompliance during a conversationwith a suspect, many law enforce-ment officers will give repeatedwarnings or, more commonly, pro-vide warnings when they obviouslyare not required.

testimony. Witnesses identified instatements taken in technical viola-tion of Miranda also may testify.44

These permissible uses of incrimi-nating statements obtained in viola-tion of Miranda have led to a prac-tice in law enforcement ofintentionally questioning in viola-tion of Miranda. This practice iscommonly referred to as question-ing “outside Miranda.” In fact, nu-merous law enforcement agencieshave encouraged and providedtraining in this practice, which hasbeen impacted significantly by theDickerson decision and now invites§ 1983 lawsuits.

© Mark C. Ide


Repeated warnings usuallyhappen when an officer contacts asuspect who recently has been prop-erly warned, but gives the warningsagain to ensure compliance withMiranda. While no Supreme Courtdecision addresses how “fresh” awarning has to be, the common ap-proach is to re-advise only after anextended break in interrogation hasoccurred. Unnecessary warningsoccur when law enforcement offic-ers fail to realize that the suspect isnot in custody and/or not being in-terrogated.45 Either of these sce-narios is most likely to happenwhen the investigation involves aserious crime or is for some otherreason a high profile matter.46

Both “over-Mirandizing” sce-narios were a problem prior toDickerson.47 Now, in addition toapprehension about statements be-ing suppressed, law enforcementofficers will be further burdenedby the possibility of civil liability.The inevitable result will be aneven greater tendency to “over-Mirandize.” The answer for lawenforcement is more training.

The Need for Trainingand Sound Policies

A thorough understanding of allaspects of Miranda by all membersof a department is a substantialtraining task. That said, the onlyway to minimize lost evidence andpotential civil liability caused by alack of understanding of Miranda istraining supported by solid depart-ment policies.

Another aspect of interrogationlargely controlled by policy is thedocumentation used to recordMiranda warnings and waivers. Asdemonstrated in Dickerson, the

prosecution must be able to estab-lish that the Miranda requirementswere met. Law enforcement manag-ers should reevaluate their policiesregarding the use of written waiverforms and the number of officerspresent during a rights warning andwaiver. They should consider vid-eotaping at least the rights warningand waiver, if not the entire inter-view. The facts in Dickerson dem-onstrate how a lawful and docu-mented advice of rights and waiverstill can result in a confession beingsuppressed.

Constitutional violation. Asidefrom exposing officers and depart-ments to civil liability, this may ex-acerbate the problem of unnecessar-ily providing Miranda warnings.

Law enforcement managersshould reevaluate their existingtraining and policies that addressthe practices of their personnel con-ducting interviews and interroga-tions. Now, more important thanever, intentional violations ofMiranda must cease.

Endnotes

1 Jacob W. Landyski, Search and Seizure

and the Supreme Court: A Study in Constitu-

tional Interpretation (Baltimore, MD: TheJohns Hopkins Press, 1966), 42, commentingon the Fourth Amendment.

2 Miranda v. Arizona, 384 U.S. 436 (1966).3 Dickerson v. United States, 530 U.S. 428

(2000).4 Id. Also see generally United States v.

Dickerson, 166 F.3rd 667 (4th Cir. 1999).5 The King v. Rudd, 168 Eng. Rep. 160

(K.B.1783) (holding that “no credit ought to begiven” to “a confession forced from the mindby the flattery of hope, or by the torture offear”) and references thereto by the U.S. Courtof Appeals, Fourth Circuit in United States v.

Dickerson, 166 F.3rd 667 (4th Cir. 1999).6 Regina v. Garner, 169 Eng. Rep. 267

(Ct.Crim.App.1848); Regina v. Baldry, 169Eng. Rep. 568 (Ct.Crim.App.1852) andreferences thereto in United States v.

Dickerson, 166 F.3rd 667 (4th Cir. 1999).7 110 U.S. 574 (1884).8 Id. at 577 (citing Baldry, 169 Eng. Rep.

568 (Ct.Crim.App.1852)); see also Pierce v.

United States, 160 U.S. 355, 357 (1896).9 168 U.S. 532 (1897).10 Id. at 542 (stating that whether a

confession is voluntary “is controlled by thatportion of the Fifth Amendment...commandingthat no person ‘shall be compelled in anycriminal case to be a witness against himself’”(quoting the Fifth Amendment to the U.S.Constitution)).

11 297 U.S. 278 (1936).12 The Supreme Court first defined

“compulsion” in Bram, stating that a confession“must not be extracted by any sort of threat orviolence, nor obtained by any direct or implied

“...the Court not onlyaffirmed Miranda but

also declared it aConstitutional rule.

”CONCLUSION

The Dickerson decision el-evated the warning requirements ofMiranda to Constitutional propor-tions. The decision has no practicalimpact on the requirements placedon law enforcement departmentsand agencies in complying withMiranda. The timing of the warn-ings (i.e., before any interrogationoccurs of a subject who is in cus-tody) and the substance of the warn-ings have remained unchanged.

The critical impact of theDickerson decision is that inten-tional violations of the require-ments of Miranda, commonlyknown as questioning “outsideMiranda,” now may provide thebasis for a lawsuit alleging a federal

August 2001 / 31

promises, however slight, nor by the exertion ofany improper influence.” See, e.g., Haynes v.

Washington, 373 U.S. 503 (1963); Ashcraft v.

Tennessee, 322 U.S. 143 (1944); Chambers v.

Florida, 309 U.S. 227 (1940).13 The Supreme Court applied the due

process voluntariness test in “some 30 differentcases decided during the era that intervenedbetween Brown and Escobedo v. Illinois, 378U.S. 478 (1964).” Schneckloth v. Bustamonte,412 U.S. 218, at 226 (1973). See also, Haynes,supra, at 513; Gallegos v. Colorado, 370 U.S.49, 55 (1962); Reck v. Pate, 367 U.S. 433, 440(1961) (“[A]ll the circumstances attendant uponthe confession must be taken into account”);Malinski v. New York, 324 U.S. 401, 404(1945).

14 Dickerson, 530 U.S. at 434, citingSchneckloth, 412 U.S. at 223.

15 The Miranda decision is clearly one of theSupreme Court’s most well-known and prolificcases. As of May 27, 2001, Westlaw reportedthat Miranda had been cited in judicialdecisions, treatises or other scholarly articles29,031 times.

16 It is critical for law enforcement officersto understand that this is a “bright-line” rule.There is no balancing test nor good faithexception. A completely voluntary statement bya subject prompted by a law enforcementinterrogator with the best of intentions will besuppressed if there is any material deviationfrom the Miranda requirements. This iscontrary to the more familiar Fourth Amend-ment search and seizure requirements (whichlaw enforcement officers typically spend farmore time with than Fifth Amendment issues).Fourth Amendment analyses are grounded in areasonableness/totality-of-the-circumstancesapproach and balance the interests of theindividual versus those of the public. TheSupreme Court said in Graham v. Connor, 490U.S. 386, at 396 (1989) (quoting Bell v.

Wolfish, 441 U.S. 520 (1979)) that “[t]he test ofreasonableness under the Fourth Amendment isnot capable of precise definition or mechanicalapplication....” But, the Court made clear inMiranda that the test of voluntariness underthe Fifth Amendment is.

17 Miranda, 384 U.S. at 444.18 See generally Edwards v. Arizona, 451

U.S. 477 (1981).19 Miranda, 384 U.S. at 467.20 18 U.S.C. § 3501 provides, in relevant

part:“(a) In any criminal prosecution brought by

the United States or by the District ofColumbia, a confession...shall be admissible in

evidence if it is voluntarily given. Before suchconfession is received in evidence, the trialjudge shall, out of the presence of the jury,determine any issue as to voluntariness. If thetrial judge determines that the confession wasvoluntarily made it shall be admitted inevidence and the trial judge shall permit thejury to hear relevant evidence on the issue ofvoluntariness and shall instruct the jury to givesuch weight to the confession as the jury feels itdeserves under all the circumstances.

(b) The trial judge in determining the issueof voluntariness shall take into consideration allthe circumstances surrounding the giving of theconfession, including (1) the time elapsingbetween arrest and arraignment of the defendantmaking the confession, if it was made afterarrest and before arraignment, (2) whether suchdefendant knew the nature of the offense withwhich he was charged or of which he was

conspiracy, bank robbery, and firearms charges)in Federal District Court, Alexandria, VA.

22 For reasons not disclosed in the record,the government relied exclusively on thetestimony of the interviewing FBI agent and didnot use other evidence, such as the testimony ofan Alexandria Police Detective (who had beenpresent for the entire interview) or a writtenstatement of Dickerson that clearly demon-strated that he had received his Miranda

warnings prior to confessing. The FourthCircuit was unable to find as matter of law thatthe lower court erred in its factual findingssupporting the suppression of Dickerson’sstatements. In reviewing the decision of theDistrict Court in suppressing the statements, theFourth Circuit stated that:

[The Alexandria police detective], whowas in the interview room with Dickersonat all times, stated in his affidavit that“Dickerson was read his Miranda rightsbefore he made th[e] statements”implicating himself...in the First VirginiaBank robbery.... In fact, [the Alexandriapolice detective] testified that whenDickerson was read his Miranda rights hestill denied any involvement in the bankrobbery. According to [the Alexandriapolice detective], it was not untilDickerson was told that agents had founda bait bill from a bank robbery in hisapartment that he decided to confess.

Attached to [the Alexandria policedetective]’s affidavit was a hand-writtenstatement that Dickerson made while atthe FBI field office in which he stated thathe “was read [his] rights [at a time clearlybefore his confession and issuance of thewarrant]”.... Thus, according to his own

hand-written note, Dickerson was read

his Miranda warnings prior to implicat-

ing himself...in the First Virginia Bank

robbery.”

U.S. v. Dickerson (4th Cir.) at 676-677(emphasis added).

23 An Act of Congress will not be enforcedby the courts if what it prescribes violates theConstitution of the United States. Such judicialreview of the legislative branch was establishedin Marbury v. Madison, 1 Cranch 137, 2 L.Ed.60 (1803).

24 Dickerson, 530 U.S. 444. “In sum, weconclude that Miranda announced a constitu-tional rule that Congress may not supersedelegislatively...[and] we decline to overruleMiranda ourselves.”

25 Id.

suspected at the time of making the confession,(3) whether or not such defendant was advisedor knew that he was not required to make anystatement and that any such statement could beused against him, (4) whether or not suchdefendant had been advised prior to questioningof his right to the assistance of counsel, and (5)whether or not such defendant was without theassistance of counsel when questioned andwhen giving such confession.

The presence or absence of any of theabove-mentioned factors to be taken intoconsideration by the judge need not beconclusive on the issue of voluntariness of theconfession.”

21 On October 6, 2000, in the aftermath ofthe Supreme Court decision, Dickerson wasfound guilty after a jury trial of three of theoriginal seven counts (one count each of the

© Mark C. Ide

Law enforcement officers of other thanfederal jurisdiction who are interested inthis article should consult their legaladvisors. Some police procedures ruledpermissible under federal constitutional laware of questionable legality under state lawor are not permitted at all.

26 Dickerson, 530 U.S. 444.27 Id., (dissent of Justice Scalia). While 32

years seems a long time for an Act of Congressto be held unconstitutional, it is not the record.Apparently, the longest such delay is the 122years it took the Supreme Court to declare18U.S.C. 474 (enacted in 1862) unconstitutionalin Regan v. Time, Inc., 468 U.S. 641 (1984).

28 To appreciate how controversial theMiranda through Dickerson line of cases are,one need look no further then the dissentingopinion of Justice Scalia, with whom JusticeThomas joins, in Dickerson, 530 U.S. 444

29 Title 42 U.S.C. §1983 provides inpertinent part: “Every person who, under colorof any statute, ordinance, regulation, custom, orusage, of any State...subjects, or causes to besubjected, any citizen of the United States...tothe deprivation of any rights, privileges, orimmunities secured by the Constitution andlaws, shall be liable to the party injured in anaction at law, suit in equity, or other properproceeding for redress.”

30 See Monroe v. Pape, 365 U.S. 167(1961).

31 Lugar v. Edmondson Oil Co., 457 U.S.922, 930 (1982) (quoting Flagg Brothers v.

Brooks, 436 U.S. 149, 155-56 (1978)).32 102 S.Ct. 2727 (1982).33 Daniels v. Williams, 106 S. Ct. 662

(1986). See also Sacramento v. Lewis, 118S.Ct.1708 (1998).

34 Monell v. Department of Social Services

of the City of New York, 436 U.S. 658 (1978).35 City of Canton, Ohio v. Harris, 489 U.S.

378 (1989).36 Examples of federal circuit courts

expressly finding no such (preDickerson) §1983liability include: Giuffre v. Bissell, 31 F.3d1241, 1256 (3d Cir.1994), Bennett v. Passic,545 F.2d 1260, 1263 (10th Cir.1976), Warren

v. City of Lincoln, Neb., 864 F.2d 1436, 1442(8th Cir.1989), and Thornton v. Buchmann, 392F.2d 870, 874 (7th Cir.1968). The only federalcircuit that allowed such §1983 actions was theNinth Circuit. See Cooper v. Dupnik, 963 F.2d1220 (9th Cir.1992), and California Attorneys

for Criminal Justice v. Butts, 195 F.3d 1039(9th Cir. 1999) (holding that not only was the§1983 action appropriate, but the police officersinvolved were not entitled to qualifiedimmunity when they continued to question thesuspects/plaintiffs after they invoked theirMiranda rights).

37 The standard for qualified immunity is“[G]overnment officials performingdiscretionary functions, generally are shieldedfrom liability for civil damages insofar as theirconduct does not violate clearly established

statutory or constitutional rights of which areasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). Seealso Anderson v. Creighton, 483 U.S. 635, 640(1987), in which the Court defined whatconstitutes a clearly established right:

The contours of the right must be suffi-ciently clear that a reasonable official wouldunderstand that what he is doing violates thatright. This is not to say that an official action isprotected by qualified immunity unless the veryaction in question has previously been heldunlawful,...but it is to say that in the light ofpre-existing law the unlawfulness must beapparent.

and, thus, the witness’ trial testimony would notbe viewed as “fruit-of-the-poisonous-tree.”Michigan v. Tucker, 417 U.S. 433 (1974).

45 A suspect must reasonably believe (fromthe perspective of an objectively reasonableinnocent person) that he or she is in custody,regardless of the intention of the interrogatinglaw enforcement officer. See Stansbury v.

California, 114 S. Ct. 205 (1988). Also, theremust be interrogation. That is, questioning or its“functional equivalent,” which is reasonablylikely to illicit incriminating information. SeeBrewer v. Williams, 430 U.S. 387 (1977) andRhode Island v. Innis, 446 U.S. 291 (1980). ForMiranda warnings to be legally required, bothcustody and interrogation must be present. Ifa suspect is in custody, warnings need not begiven until interrogation begins. Likewise, ifa suspect is not in custody and is beingquestioned by the police, warnings need notbe given.

46 See Colorado v. Connelly, 107 S. Ct.515 (1987) for an excellent example of this.Connelly, who had brutally murdered a younggirl, walked up to a police officer on a streetcorner in Denver and began explaining to theofficer what he had done. Connelly was clearlyneither in custody nor was the police officerinterrogating him. But as soon as the officerunderstood this involved a possible murder heabruptly interrupted Connelly and gaveMiranda warnings and continued to interruptConnelly’s attempts at unburdening hisconscience to ascertain if Connelly was insaneor under the influence of something. The officerwas unwary as to the requirements of Miranda

and attempted to compensate by grosslyexceeding the requirements. See also JudgeHarold J. Rothwax, Guilty - The Collapse of the

Criminal Justice System, (New York, NY:Warner Books, 1997), 66-69, for poignantcommentary on this case.

47 The Court in Dickerson, as noted above,opined that Miranda is easier for law enforce-ment officers to conform to, and for courts toapply in a consistent manner, than the totality-of-the-circumstances test. They make nomention of countless incriminating statementsthat were never made because of unnecessary orexcessive Miranda warnings and the impactthis has had on the legitimate interests ofcriminal justice.

“...questioning ‘outsideMiranda,’ now may

provide the basis fora lawsuit alleging a

federal Constitutionalviolation.

”38 See Reser v. Las Vegas Metropolitan

Police Department, 242 F.3rd 383, 2000 WL1585648 (9th Cir.(Nev.)) (October 20, 2000)where the court affirmed entitlement ofqualified immunity in a §1983 lawsuit to adetective for actions occurring during aninterrogation that occurred prior to theDickerson decision. The court explicitly saidthat because the interrogation occurred beforethe Dickerson decision, the Constitutionality ofMiranda warnings had not been clearlyestablished at the time of the interrogation.

39 42 U.S.C. §1983, at subsection LVII.40 42 U.S.C. §1988(b).41 Sun Tzu, The Art of War (Boston, MA:

Shambhala, 1991). This is a translation of anancient Chinese work of unknown original date.

42 Incriminating statements made involun-tarily under the Due Process Clause may neverbe used for any purpose. Arizona v.

Fulminante, 499 U.S. 279 (1991).43 Harris v. New York, 401 U.S. 222 (1971).

Ironically, Dickerson’s suppressed confessioneventually was used against him at trial toimpeach his in-court testimony.

44 While the defendant’s statement would beexcluded from trial, the discovery of the witness


The Bulletin Notes

Law enforcement officers are challenged daily in the performance of their duties; they face eachchallenge freely and unselfishly while answering the call to duty. In certain instances, their actionswarrant special attention from their respective departments. The Bulletin also wants to recognizetheir exemplary service to the law enforcement profession.

Officer Rousselle

After responding to a 911 call of domestic violence at a residence, OfficerDavid Rousselle of the North Tonawanda, New York, Police Departmentbegan searching for the male suspect who fled the scene. Shortly after, OfficerRousselle spotted the suspect in his vehicle, stopped the vehicle, and attemptedto question the man; however, the suspect insisted that he was going home andproceeded to drive away. The suspect pulled in front of his residence and re-mained in his locked vehicle communicating with Officer Rousselle througha partially opened window. After learning his arrest was imminent, the suspectretrieved a gasoline can from inside his vehicle and began pouring gas on him-self and reiterated threatsthat he was not going backto jail and that he was

going to kill himself. When Officer Roussellenoticed that the man had a lighter and wasattempting use it, he immediately broke thewindow and safely removed the gasoline-soakedsuspect from the vehicle, without regard forhis own personal safety. Officer Rousselle’squick thinking and selfless actions preventeda tragedy.

Officer Nicholls

While patrolling the Intracoastal Waterway in the City of Hollywood,Florida, Officer Tim Nicholls observed a 24-foot cabin cruiser on fire. Afternotifying the dispatcher, Officer Nicholls responded to the scene to find the boatoccupied by a father and his three children. As the boat’s engine burned, OfficerNicholls disregarded his own safety, boarded the burning vessel, and rescuedall four occupants. After ensuring the occupants reached the safety of his policeboat, Officer Nicholls then attempted to suppress the flames with a fire extin-guisher. Unsuccessful at his attempts, Officer Nicholls tied a line to the burningboat and towed it to the boat ramps and awaited the fire department. Althoughthe vessel sustained more than $15,000 in damage, Officer Nicholls’ selflessactions saved the lives of three small children and their father.

Nominations for the Bulletin Notes should be basedon either the rescue of one or more citizens or arrest(s)made at unusual risk to an officer’s safety. Submissionsshould include a short write-up (maximum of 250words), a separate photograph of each nominee, and aletter from the department’s ranking officer endorsingthe nomination. Submissions should be sent to theEditor, FBI Law Enforcement Bulletin, FBI Academy,Madison Building, Room 209, Quantico, VA 22135.

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